The High Court Challenges To The Same-Sex Marriage Survey Explained

The Australian Marriage Law Postal Survey is supposed to begin on September 12 but prior to that the High Court of Australia will hear two challenges that are looking to stop the postal survey from taking place on the grounds that it is unlawful. This means that, come September 12, we may not be receiving postal survey forms at all. It’s all slightly confusing, so here’s everything we know about the High Court challenges.

Wait. What Is The High Court?

The High Court of Australia is the highest court of the Australian judicial system. Its major role is to interpret and apply the law of Australia. Section 75 and Section 76 of the Australian Constitution give the High Court original jurisdiction – to hear new cases – and appellate jurisdiction – to hear appeals. With these powers, it can decide cases of federal significance including challenges to the constitutional validity of laws. It features a bench of seven justices.

What Does This Have To Do With Same-Sex Marriage?

Same-sex marriage advocacy groups believe that the marriage equality postal survey is unlawful and should not go ahead for a myriad of reasons. As such, they have lodged cases with the High Court of Australia to effectively block the postal survey from taking place.

There are two distinct cases being heard, with case numbers M105 and M106. Anyone can access the High Court of Australia’s website and view these cases and their proceedings.

Who Is Challenging The Postal Survey?

Lawyers working for two same-sex marriage advocacy groups have brought cases forward.

The first group is made up of Independent MP Andrew Wilkie, Felicity Marlowe and the Brisbane chapter of the non-profit organisation PFLAG (Parents and Friends of Lesbians And Gays). As they are bringing forward case M105, they are known as the ‘plaintiffs’. The defendants in case M105 are five-fold: The Commonwealth of Australia, the Minister for Finance Mathias Cormann, the Treasurer Scott Morrison, the Australian Statistician and the Electoral Commissioner.

The second group is made up of Senator Janet Rice, a member of the Greens, and the advocacy group Australian Marriage Equality. They are the plaintiffs in case M106. The defendants in their case are two-fold: The Minister for Finance Mathias Cormann and the Australian Statistician.

Does This Mean The Postal Survey Is On Hold?

Not entirely. Originally, the plaintiffs were seeking an ‘injunction’ – basically a court order that would mean the Government and the Australian Bureau of Statistics (ABS) would have to refrain from preparing for the postal survey. When the cases were first heard, on August 11, both parties agreed that an injunction would not be necessary as long as the High Court allowed the challenges to be heard before September 12.

Thus, the ABS has continued to prepare for the survey and awaits the results of the High Court challenges.

What Date Will The High Court Challenges Take Place?

The two most important dates are September 5 and September 6. On these days, the challenges will be heard by the full bench of the High Court. Though the High Court rarely gives its decision at the end of a hearing, it is expected that the judgement will be made shortly after the cases are heard, owing to the fact that there is only six days between the hearings and when the postal survey begins. Thus, we could potentially hear about the outcome as early as the afternoon of September 6 or at some point on September 7.

[referenced url=”” thumb=”” title=”Australian Marriage Equality Vote: Everything You Need To Know” excerpt=”Starting in September, Australians will have the opportunity to vote on the issue of same-sex marriage in Australia via a postal survey. There’s a lot of information to take in and not all of the language is easy to understand. We’ve collated everything we know about the survey right here.”]

What Are These Groups Challenging?

In case M105, the documents the plaintiffs have submitted to the High Court challenge the Government on four major points:

  1. That the law which allows the Finance Minister to appropriate taxpayer money to fund the postal survey is unconstitutional. The law states (in section 10 of the Appropriation Act 2017-2018) the Finance Minister may be able to appropriate funds if there is an ‘urgent’ need for expenditure.
  2. If the law is deemed constitutional, then the plaintiffs will argue that the postal survey cannot be undertaken because the circumstances are not ‘urgent’ or ‘unforeseen’
  3. The Australian Bureau of Statistics does not have the power to collect the information from the postal survey because it is not ‘statistical information’.
  4. The Australian Electoral Commission (AEC) does not have the legal right to hand information over to the ABS for a survey because their functions are confined to ‘electoral matters’.

In case M106, the plaintiffs will predominantly argue the second point, that the Finance Minister cannot appropriate funds for the postal survey because this expenditure is not supported by law, was not ‘unforeseen’ and the circumstances that would support money being withdrawn have not been met.

What Is The Australian Government Arguing?

In case M105, the Government’s arguments, which were released on August 30, challenge the plaintiffs on a number of counts. The first is that the plaintiffs do not have ‘standing’ – that they are not legally able to bring forth the case. If the High Court rules in favour of the Government here, then the challenges will be unsuccessful.

However, if the High Court rules in favour of the plaintiffs and agrees they do have standing, then the Government will argue:

  1. That section 10 of the Appropriation Act 2017-2018 is misunderstood by the plaintiffs and that it does not allow the Finance Minister to withdraw funds from the Treasury. Thus, the Government alleges that the attacks on this section are based on a false premise and are not relevant.
  2. The circumstances are ‘urgent’ and ‘unforeseen’ in context of the Finance Minister. As the Finance Minister was unaware of the potential to spend money on a survey when the Appropriation Bill was introduced to Parliament in May, then paying for the postal survey is an unforeseen expenditure.
  3. The ABS has the power to collect the opinions of the Australian public on same-sex marriage because this can still be classified as statistical information. They argue that an ‘opinion poll’ is exactly that.
  4. The AEC are able to assist with the postal survey as defined under Section 7A of the Electoral Act, which makes it clear they can assist other person or bodies with matters other than elections.

If you’re interested in further reading, you can view the written documents that the Government submitted to the High Court for an extensive breakdown.

In case M106, the Government again challenges the standing of the plaintiffs with extensive arguments as to why they are unable to bring the case forward in the first place. You can read the full details here, in section 19-26. A lot of the same arguments that they are using in case M105 are again reiterated here, particularly in regards to proving the Finance Minister could not have known a postal survey would take place when the Appropriation Bill 2017-2018 was submitted to Parliament.

What’s Happened So Far?

The plaintiffs written submissions were received on August 23. The defendants then had a week to prepare their counterarguments and submit them to the High Court. These were received by the court on August 30 and form the basis of the above sections.
Then, on September 1, the plaintiffs submitted their replies to the governments arguments.

In it, they used several historical precedents to refute the majority of the claims made by the government. You can view the reply in case M105 here and in case M106 here.

The hearings will take place today, September 5, in Melbourne, in front of the full bench of the High Court.

What Happens If The High Court Challenges Are Successful?

Simply put, there will be no postal survey on same-sex marriage. Importantly, if there is no postal survey, the Coalition government has informed the public that no same-sex marriage bills will be able to be brought forth.

It will also, in theory, mean that $122 million of taxpayer’s money isn’t spent to conduct the survey.

What Happens If The High Court Challenges Are Unsuccessful?

In that case, beginning September 12 , postal survey response forms will begin being mailed out to anyone who was enrolled before August 24th. You can find out everything you need to know about the postal vote right here.

Do You Think The Legal Challenges Will Be Successful?

I’m not a lawyer and I don’t have the required training to make a call. If I was pressed on the issue, I will say that the Government are making a concerned effort to prove the plaintiffs do not have legal standing to challenge the postal survey in the first place. Taking emotion out of the equation, this will be an interesting facet of the cases that may make or break them.

With thanks to @McGarnical for answering various legal questions I had in the creation of this article.