On Tuesday and Wednesday, two groups of same-sex marriage advocates will lock horns with the government in Australia's highest court in an attempt to stop Australia's upcoming postal survey on same-sex marriage.
It's the latest — and perhaps final — stance against the government's policy of a public vote of some kind on same-sex marriage, which was first raised in August 2015 and has been bitterly opposed by segments of the LGBTI community ever since.
Unlike Ireland, Australia does not need to have a public vote to legalise same-sex marriage.
The government's two efforts to get a compulsory attendance plebiscite through the Senate both failed. Now, it is embarking on a last-ditch effort to enact its election promise: a postal survey run by the Australian Bureau of Statistics (ABS).
The "yes" and "no" campaigns are already in full swing, but the two challenges lodged in the High Court of Australia could stop the whole thing in its tracks. Or the court could wave the government's survey through — and potentially set an interesting precedent for future uses of government funds.
If you plan to follow this significant case across the next two days and want to get your head around what to expect, here's a summary of the major players and the arguments for and against the survey.
A who's who of the postal survey legal challenge
The two cases are known as M105 and M106 (this is the number the court assigned to the challenges when they were filed).
The plaintiffs in M105 are independent MP Andrew Wilkie, Shelley Argent from Pflag, and Victorian mum-of-three Felicity Marlowe, represented by the Public Interest Advocacy Centre. Their lead barrister is Ron Merkel QC.
The defendants in M105 are the Commonwealth of Australia, finance minister Mathias Cormann, treasurer Scott Morrison, Australian Statistician David Kalisch and Electoral Commissioner Tom Rogers.
The plaintiffs in M106 are advocacy group Australian Marriage Equality and Greens senator Janet Rice, represented by the Human Rights Law Centre. Their lead barrister is Katherine Richardson SC.
The defendants in M106 are Cormann and Kalisch.
In court, solicitor-general Stephen Donaghue QC will appear for the government and relevant ministers.
Why do the plaintiffs think the postal survey should be stopped?
Broadly speaking, 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 ABS does not have the authority to collect the information the government is asking it to.
The government has earmarked $122 million for the survey using a provision in the Appropriations Act called the Advance to the Finance Minister. This lets the minister — Mathias Cormann — spend up to $295 million on initiatives that are urgent and unforeseen.
In M105, there are four main arguments:
- The plaintiffs argue that the Advance to the Finance Minister is unconstitutional to begin with.
- If that falls down, it will also argue that even if the provision itself is constitutional, then using it for the same-sex marriage survey isn't. Why? Because it specifies that it has to be for an "urgent" and "unforeseen" expense (or due to an error, but that's irrelevant to this particular case). The challenge argues that a change to the Marriage Act is not demonstrably urgent, and that a postal vote on the matter is not unforeseen.
- The plaintiffs will also argue that the postal survey is really a vote or plebiscite dressed up as a survey in order to get around the legal hurdles — which the ABS does not have the power to conduct. They also contend that the ABS only has the power to collect "statistical information", which doesn't include collecting opinions about same-sex marriage.
- Finally, M105 will argue that the involvement of the Australian Electoral Commission (which is providing the electoral roll and sending out forms to silent voters) is not allowed, because the postal survey is not an election.
M106 is a narrower case, meaning it rests on fewer arguments:
- The plaintiffs are not arguing that the Advance in itself is unconstitutional, but, like M105, they are contending the postal survey is neither urgent nor unforeseen.
- It also argues that the Advance to the Finance Minister can only be used on the "ordinary annual business of government". This doesn't include the postal survey, the argument goes, because the survey is a highly unusual and unprecedented move, regardless of whether it is considered as a plebiscite or an ABS-run mass survey.
Why does the government believe the postal survey should go ahead?
First off, the government is going to argue that the plaintiffs don't have "standing", which basically means the ability to bring forward the case. In order to have standing, plaintiffs have to demonstrate a special interest in the result.
Wilkie, Marlowe, Argent, Rice and AME all argued they have standing for various reasons, including being part of advocacy groups around marriage, being members of parliament who voted against the plebiscite, and being in relationships that would be affected by the result of the postal survey. The government argued against each of these grounds in its submissions.
If the standing argument is successful, the case will be thrown out. But if it's not successful, the government will go on to argue the following in each case:
- The government will argue that the Advance to the Finance Minister is constitutional for a number of reasons, including that it is part of a bill that was authorised by parliament in the usual sense, and that historically such uses of funds have happened uncontested.
- On the second point of whether the survey is urgent and unforeseen, the government's argument will focus on the specific policy of a survey carried out by the ABS with a result by November 15, 2017. The government will argue that that specific scenario did not become policy until August 7, at which point there became an urgent need to fund the ABS so it could carry out the policy. It will also argue that that specific policy was unforeseen by Cormann, despite any previous conversations or commitments to the general notion of a public vote on same-sex marriage.
- It will also argue that the phrase "statistical information" does indeed include collecting opinions. The government submission also argues that it's not correct to say the survey is a vote: "In any event, it is not correct to characterise the activity as a vote. Among the defining characteristics of a vote, as understood in Australia, are that it has immediate consequences and is compulsory. The AMLPS has neither of those features."
- And finally, the government rejects that the AEC can't be involved with the survey, saying it is clear in the Electoral Act that the AEC can assist with matters outside of elections.
- Best to just refer to the second dot point above — the two arguments here are similar, and so is the government's defence.
- The government will also contend that it's not up to the court to decide what does and what doesn't fall inside the "ordinary annual business of government"; that the postal survey does fall into that category anyway; and even if it doesn't, it's still able to be funded via the Advance to the Finance Minister.
When will we know, and what is the decision likely to be?
According to constitutional law expert and the dean of UNSW Law, George Williams, we should expect a quick decision — either at the end of the hearing on Wednesday, or in the following days. But we won't get the court's reasons for deciding the way it did until a bit later.
As for how it rules...here's some analysis from Williams on how it might turn out — he predicted a government win is possible, but said it is facing an "uphill battle".
"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."