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This Is What You Missed At The First Day Of The High Court Case Against The Same-Sex Marriage Survey

"A special interest that he shares with 16 million other Australians?"

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(L-R) Co-Chair of Australian Marriage Equality Alex Greenwich, Anna Brown, Public Interest Advocacy Centre CEO Jonathon Hunyor, lesbian mum Felicity Marlowe.
James Ross / AAPIMAGE

(L-R) Co-Chair of Australian Marriage Equality Alex Greenwich, Anna Brown, Public Interest Advocacy Centre CEO Jonathon Hunyor, lesbian mum Felicity Marlowe.

"All Australians deserve an opportunity for love, commitment, and happiness. Gay and lesbian Australians should be able to marry the person they love."

This is how Anna Brown, the director of legal advocacy at the Human Rights Law Centre (HRLC), began a press conference outside the temporary home of the High Court of Australia in Melbourne on Tuesday morning.

The HRLC is behind one of two legal challenges to the government's postal survey on same-sex marriage, set to kick off in just seven days. The two challenges — the other is being run by the Public Interest Advocacy Centre — had a joint first day of hearings today.

"This plebiscite, this postal plebiscite, is completely unnecessary," Brown continued outside the court. "It's costly, divisive, and already causing harm to our community. The rights of any group of Australians being subject to a public vote sends a terrible message to our community."

It's a familiar argument: the pros and cons of the survey formerly known as a plebiscite has been part of Australian political discourse for over two years. The government says it's needed to fulfil its election promise of giving all Australians a say on same-sex marriage. Now, whether or not it can go ahead is a matter for the High Court.

The challenges against the survey rest on two main arguments: that the government does not have the power to spend money on the postal survey without passing legislation, and that the Australian Bureau of Statistics (ABS) does not have the authority to collect the information the government is asking it to.

The hotly-anticipated first day of hearing on Tuesday morning drew a crowd, with a lengthy line winding around the foyer and out the door of the Commonwealth Law Courts building in the Melbourne CBD. "Court's the place to be today!" a security officer remarked as he handed back laptops and bags to the assorted people filing through the metal detector.

At 10.15am, in a packed courtroom, Ron Merkel QC, acting for the independent MP Andrew Wilkie, lesbian mother-of-three Felicity Marlowe and Pflag's Shelley Argent, started to make the case to stop the survey to the full bench of the High Court.

Nine stories down, a second packed courtroom watched the drama play out on a live feed on two TV screens.

Merkel outlined why Wilkie, Marlowe and Argent have standing, or the right to bring forward the case, saying Wilkie's status as an MP conferred standing, as well as the fact he will receive the survey form in the mail.

"A special interest that he shares with 16 million other Australians?" asked judge Virginia Bell, eliciting muted laughter in the live feed courtroom.

The judges also questioned whether Wilkie's employment can grant him standing.

Merkel said Marlowe's interest in the case goes beyond any emotional hurt that the postal survey may cause to her, and rather, it's predicated on the fact that people are being asked to cast judgement on her relationship.

"We will demonstrate how unique and offensive it is that a personal opinion is being asked on a relationship of this kind," Merkel said. The judges did not question Marlowe or Argent's standing.

This is the all-important Advance to the Finance Minister:

To fund the postal survey, the government is using part of the Appropriations Act called the Advance to the Finance Minister, which allows spending of up to $295 million provided it is "urgent" and "unforeseen".

First, Merkel argued that the advance to the finance minister is in itself unconstitutional, and is an "impermissible" delegation of authority from the parliament to the executive.

He then addressed whether or not the postal survey itself is valid, accusing the government of conflating separate categories of "urgent" and "need".

While the government adopting the policy of a postal survey run by the ABS with a result by November 15 might constitute "need", Merkel argued, it was unreasonable for the government to say this also conferred "urgency", given it is based solely on their own timeline.

He linked "urgency" with not being able to pass a bill through the parliament, saying that the government did not attempt to get parliamentary approval for the postal survey.

"The Senate was sitting at the very time [the survey was announced] and resumed sitting yesterday," Merkel said. "There’s no reason at all why this was so urgent it couldn’t be put to a house [of parliament] to approve which what we say gives meaningful effect to the word urgent."

Finance minister Mathias Cormann defended himself on Twitter as the hearing proceeded:

Plainly not true. Firstly, amount of Advance limited by Parliament. Secondly expenditure has to be constitutional (…

and authorised by relevant legislation (check Census and Statistics Act 1905 in particular and ABS Act 1975) 2/2

Then, Merkel handed over to his junior, Kathleen Foley, to argue points around whether the ABS can conduct the survey and collect opinions. This line of argument drew several questions from the bench, some issued in a rather incredulous tone.

Foley argued that the ABS had been instructed to take what was, essentially, a vote.

"But votes have consequences," said Chief Justice Susan Kiefel.

"Not always, your honour," replied Foley, referencing Western Australia's referendum on secession in 1933, in which the state voted to withdraw from Australia but was eventually stymied by a select committee in the UK.

In response, Kiefel pointed out that the vote would have had an effect were it not for the UK committee.

After a break for lunch, Kate Richardson, acting for Australian Marriage Equality and Greens senator Janet Rice (who couldn't get a voting pair in the Senate to be there in person), argued that the postal survey could not reasonably be regarded as "unforeseen".

A significantly diminished audience in the second courtroom watched on, as Richardson accused the government of adopting an "absurd and unwarranted degree of precision" by limiting what was unforeseen to a) a postal survey; b) conducted by the ABS; c) with a result by November 15.

This argument elicited a lot of questioning from the judges, who teased out the counter-argument being put by the government — namely, that while a compulsory plebiscite run by the Australian Electoral Commission was foreseen, a voluntary survey run by the ABS was not.

But Richardson argued that knowledge of expenditure is more important than which body will spend it. Even if a postal survey run by the ABS was unforeseen, a more general notion of a plebiscite was certainly predictable — and that the government should have known ahead of time that it would cost money, she said.

Richardson also read out several press releases and statements from Cormann, in which he described the postal survey as a "plebiscite".

There were fewer quips and fewer questions as the afternoon, and Richardson's arguments, drew to an end. The court adjourned at 4.20pm.

Tomorrow, at 10.15am, solicitor-general Stephen Donaghue will put forward the case for forging ahead with the controversial survey. There could be a ruling as early as tomorrow afternoon.

Meanwhile in Canberra, Cormann announced that printing of forms for the postal survey had begun.

Lane Sainty is a reporter for BuzzFeed News and is based in Sydney, Australia.

Contact Lane Sainty at

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