Millions of taxpayer dollars will be lost, with no chance of ever being recovered, if the High Court strikes down the government's survey on same-sex marriage next week.
The hearing, set for September 5 and 6 in Melbourne, could make or break the survey, which has been presented by the government as the way to break Australia's increasingly untenable political stalemate on the marriage equality issue.
Two separate challenges will argue the survey should be stopped on the grounds that the government's use of funds is unconstitutional, and that the Australian Bureau of Statistics (ABS) doesn't have the authority to collect the information.
But due to the rapid timeline of the survey, the ABS has been preparing to launch the postal ballot as the court process happens. If the postal survey is stopped in its tracks — as experts have indicated is a real possibility — at least $8 million spent by the government on advertisements will go down the drain.
In an interview with the BuzzFeed News political podcast Is It On?, leading constitutional law expert and the dean of the University of New South Wales law school, professor George Williams, said any such funds would be "lost taxpayers money".
"It's not as if it can be recovered in any meaningful way," he said. "It's just money that can't be used for something better."
Finance minister Mathias Cormann told BuzzFeed News the government was confident it had the authority to carry out the survey: "This is now a matter for the High Court. But clearly, the money that is spent has been spent."
Williams predicted that the government is facing "an uphill battle" on the survey challenge.
"The High Court has said over a number of cases, in which it struck down the National School Chaplaincy Programme, that in almost all circumstances the government needs parliamentary authorisation to spend money. That's why the government twice tried to get its plebiscite through parliament. The parliament said 'no', so it's now trying to hold the postal survey without that authorisation. The government says it's found a backdoor method of doing this, there's a special appropriation act that allows it to spend money [that is not] authorised by parliament on urgent and unforeseen matters. The question for the High Court is, is this urgent and unforeseen? It's hard for me to see how it's urgent — maybe it is for the government's own political priorities — and unforeseen, well, we have been debating this for a while. I look at that, and say it's a matter of common sense. Unless the HC says, 'We will give a lot of leeway to the government', then I think it's going to be hard to convince the court."
Williams added that he wasn't ruling out a win for the government, but thought it would be "an uphill battle".
The High Court may issue a decision on the day of the expedited hearing or in the following days, Williams said. He said the High Court's reasons — the usually lengthy legal explanation behind its decision — would likely not be released until some time later.
A spokesperson for the ABS told BuzzFeed News on Friday that only "necessary expenditure" would take place before the High Court decision.
"Prior to the High Court decision, approximately $8 million will have been spent on advertising production and placement with other costs related to updating the electoral roll, operating the Information Line, establishing IT and security protection, survey operations, and materials printing not yet finalised," he said.
"Contracts include clauses for termination and reduction for convenience."
Senior ABS staff member Samantha Palmer told a Senate committee in mid-August that $6 million would be spent on advertising for the postal survey by September 6.
Deputy statistician Jonathan Palmer told the committee there would be an "opt out clause" in the print-and-dispatch contract, allowing the ABS to pull out if the postal survey is canned.
"I can't tell you precisely what date, at this point, we'll be able to opt out," he said. "I don't have that."
The full interview with George Williams will feature in BuzzFeed Australia’s podcast ‘Is It On?’. You can listen to it this weekend. View it on iTunes and subscribe here.
Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.
Contact Lane Sainty at email@example.com.
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