High Court dismisses challenge, so Australia is off to the (postal) polls on same-sex marriage

The High Court has today confirmed the validity of the government’s proposed postal survey on same-sex marriage. This means that from September 12, the Australian Bureau of Statistics (ABS) will post out surveys asking if the law should be changed to allow same-sex couples to marry.

With the start of the postal survey imminent, the court heard the challenge as a matter of urgency this week, handing down its decision less than 24 hours after the hearings finished.

We don’t yet know the reasons why the court decided the way it did. To reach a finding of validity, it had to work through several quite technical constitutional and legal arguments.

Did the plaintiffs even have a right to challenge the survey?

Not just anyone can challenge government actions in court. There must first be established what is known as “standing”. This means a right to challenge because of a “special interest” in the case.

This was difficult to establish in this particular challenge. It’s one of the reasons there were so many plaintiffs – including independent lower house MP Andrew Wilkie, Felicity Marlowe, a woman in a long-term same-sex partnership with three young children, and Australian Marriage Equality, a group specifically established to advocate for same-sex marriage.

The government objected to the standing of each of the plaintiffs. It claimed, for instance, that Marlowe’s concerns about the distress the survey would cause her and her family rose no higher than “emotional concern” that was insufficient to establish standing.

Standing was a significant question in this case. This is because the High Court has previously held that it is extremely difficult to establish the necessary “special interest” to challenge government expenditure.

It would have been a most unsatisfying result if the court had made its decision purely on the basis that no-one had a special interest to challenge the survey. One of the plaintiffs’ submissions was that if they do not have standing, the only people who could challenge the law would be the state governments or the ABS. The plaintiffs rightly submitted that this would have serious implications for the rule of law.

But rather than enter this legal quagmire, the court avoided answering the difficult issue of standing by finding that the challenge would have failed in any event.

This is entirely consistent with its 2005 precedent, which was an attempt to challenge the Howard government’s spending on advertising for its WorkChoices policy.

Did parliament give the government permission to withdraw $122 million?

The first of the substantive challenges against the postal survey was that the government did not have a valid “appropriation” to withdraw the $A122 million for it from the Treasury.

Before the government withdraws money, it first needs permission from the parliament, known as an appropriation. This process of parliamentary approval for government withdrawal of funds is required by Section 83 of the Constitution, which states:

No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

It was common ground that parliament has not passed any new appropriation to authorise the withdrawal of the $122 million. So, the government drew ona pre-authorised $295 million bucket of money that had been established by the parliament as a contingency fund. This is known as the Advance to the Finance Minister.

In order for the finance minister to draw upon that money, two conditions need to be met:

• the finance minister needs to be “satisfied that there is an urgent need for expenditure”; and

• the expenditure needs to be “unforeseen” at the time the act was passed (which was in May, 2017).

One argument was that this type of appropriation is constitutionally invalid – that it gives the government, in effect, a blank cheque to spend up to $295 million, which is in breach of the fundamental purpose of Section 83.

However, the Commonwealth argued that this type of pre-approval has a history that dates to early English and colonial practice. Parliament has approved the withdrawal, but chosen to do so by giving the government a wide discretion, limited by the specified amount of money.

The plaintiffs also argued that the expenditure was neither urgent nor unforeseen. They argued that something could only be “urgent” if it needed to be dealt with so quickly that it would not be possible to go to parliament to seek a special appropriation. They said that the only cause of “urgency” was of the government’s own making: it had chosen to require the survey results to be available by November 15, 2017.

In response, the government argued that it was for the minister, and not parliament or the court, to be satisfied that the expenditures were urgent, and that urgency could be created by changes in policy that result in an urgent need for expenditure within timeframes determined by the government.

The plaintiffs then said a postal survey was not only unforeseen, but in fact was specifically contemplated by the government, even if the exact details had not been determined by May.

The policy of a plebiscite on same-sex marriage was part of the government’s platform at the 2016 election. After the plebiscite was first defeated by the Senate in November 2016, the idea of conducting it via a postal survey was contemplated by at least some government ministers. It had been contemplated so seriously that the Department of Finance had received advice from the attorney-general’s department on the option of conducting a postal plebiscite in March 2017.

The government argued in response that the expenditure was unforeseen because, while the policy of conducting a plebiscite was longstanding, the expenditure on a postal survey by the ABS was not endorsed by cabinet, and thus becoming official government policy, until after the budget in May. This was enough to make the expenditure unforeseen.

The plaintiffs raised an additional argument that the expenditure was not for what is referred to as the government’s “ordinary annual services”. Under the Constitution, the Senate’s powers over expenditure on such services is limited. Under Section 53 of the Constitution, it can’t introduce or amend such expenditures, although it can reject them outright.

The Advance to the Finance Minister the government was relying on is found in what is known as Appropriation Act No 1, which contains expenditures for the government’s ordinary annual services. The Senate’s powers over this bill are therefore limited. The plaintiffs argued it was wrong for the government to draw on the Advance to the Finance Minister contained in such a bill for the postal survey, which was a new, unique and extreme set of circumstances.

The difficulty with each of the arguments that challenged the $122 million is that the court is generally reluctant to interfere with how the parliament has decided to authorise government withdrawal of funds.

The High Court has previously indicated that the question is, essentially, a matter to be resolved by the parliament. For instance, the last time the court was asked to look at this issue (in the 2005 case referred to above), it endorsed the idea that it is for parliament to determine how it exercises the supervisory responsibility given to it in Section 83.

Dressing up a plebiscite as a statistical survey

When the idea of a non-binding plebiscite first emerged in early 2017, many assumed the government would ask the Australian Electoral Commission (AEC), the organisation ordinarily responsible for conducting elections and votes, to conduct it.

The AEC can conduct plebiscites under the Commonwealth Electoral Act. This allows the government to contract the AEC’s services for such an exercise.

However, there was a major constitutional issue with this course of action: the Commonwealth didn’t have any statutory basis to spend the money to contract the AEC. This has become a requirement since the successful High Court challenge to similar spending for the National School Chaplaincy Program.

When the postal survey was announced, the Commonwealth revealed it was not going to ask the AEC, but the ABS. The ABS already has statutory authority to spend money on statistical surveys under the Census and Statistics Act, so the Commonwealth must have thought it was at least able to avoid this basis for a constitutional challenge.

However, the decision to ask the ABS has run into two major hurdles.

The first is that the ABS is not well set up to conduct large-scale exercises of this kind. As a matter of simple logistics, the AEC has had to transfer staff to the ABS just so it has the expertise and resources to undertake the job. The AEC has also had to update the electoral roll and provide that information to the ABS.

While there is a specific statutory provision that allows the AEC to transfer information to the ABS, the AEC isn’t authorised to give the ABS the postal addresses of silent voters. So, again, the ABS has had to call on the AEC for help, and contract the AEC to send those votes out on its behalf.

All of this demonstrates how unusual it is to ask the ABS to conduct a “survey” of this kind. Legally, it has raised another challenge to the scheme, on the basis that the AEC is not allowed to assist the ABS in this way.

The second hurdle is that under the Census and Statistics Act, the ABS may only collect statistical information that is prescribed by regulation.

In directing the ABS to conduct the survey, the treasurer indicated that the information sought, relating to the opinions of participating voters about same-sex marriage, fell within the types of prescribed statistical information that are set out in the Census and Statistics Regulation 2016, and more specifically:

• births, deaths, marriages and divorces;

• law; and

• population and the social, economic and demographic characteristics of the population.

This led to an argument about the interpretation of the term “statistical information” in the act. The plaintiffs argued that statistics referred to the collection of objective, factual data, and not personal, subjective beliefs or opinions. However, they came up against a difficulty: the ABS has always collected information about religious beliefs.

The Commonwealth argued for a more dynamic definition of “statistics”. It argued the term extended to all information that is required to obtain a working knowledge of the population to assist the government fulfil its functions, and that there were many examples of statistical exercises including the collection of information about opinions.

What next for marriage equality?

While we now have an outcome from the High Court, we don’t yet know why.

On September 12, the ABS will start to conduct a survey on whether to legalise same-sex marriage in Australia. Many hope this will eventually lead to marriage equality in Australia.

While the political process now takes centre stage, the High Court will be writing its reasons to explain why it allowed this course of events to continue.