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After two days of intense legal argument, the fate of the government's postal survey on same-sex marriage will be revealed by the full bench of the High Court at 2.15pm on Thursday afternoon.
The decision will make or break the postal survey: granting the Australian Bureau of Statistics (ABS) the right to go full steam ahead with distributing survey forms from September 12, or stop the ballot in its tracks and return Australia to an uneasy political stalemate on whether same-sex couples can marry.
On Wednesday, the government's top lawyer, solicitor-general Stephen Donaghue, rose to rebut the two legal challenges against the survey, heard on Tuesday and brought by the Human Rights Law Centre and the Public Interest Advocacy Centre.
The challenges contend that the government does not have the proper authority to spend money on the survey, nor does the ABS have the right to collect the information it has been asked to.
Early on, Donaghue pointed out that even if the legal challenges win on the arguments around spending money, it may not stop the survey: “Nothing put on the financial side of the case deals with the question of whether the survey can proceed.”
The ABS could technically dip into its regular budget to fund the survey — depriving the agency of funds to carry out other things. Donaghue’s statement doesn’t mean this will definitely happen, but the mere suggestion had the LGBTI advocates watching on rattled.
“We lose even if we win,” one remarked in the lunch break.
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”.
Could the postal survey really be both of those things after years of delay and debate on this very issue? According to Donaghue, yes.
The government is arguing that the urgent need for the $ 122 million for the survey arose when it adopted its policy of holding a postal survey, run by the ABS, with a result by November 15.
“[Something being urgent] can arise from a need for expenditure to carry out a government policy,” Donaghue told the court.
He rejected the argument of plaintiffs Andrew Wilkie, Felicity Marlowe and Shelley Argent, put by Ron Merkel QC, that urgency was conveyed either by external factors (e.g. a natural disaster) or by it being too urgent for parliament to consider the expenditure.
“'Urgent' in our submission is just an ordinary English word,” Donaghue told the court, adding that the court is “not well placed” to interpret whether or not something is actually urgent in this context.
Donaghue also contended that the postal survey in its present form was unforeseen, and could not have been included in the budget as it wasn't a government policy at that time.
He argued that the unforeseen involvement of the ABS was enough to fulfil the unforeseen criteria.
(L-R) Co-Chair of Australian Marriage Equality Alex Greenwich, Director of Legal Advocacy, Human Rights Law Centre Anna Brown and Public Interest Advocacy Centre Chief Executive Officer Jonathon Hunyor.
James Ross / AAPIMAGE
But in her reply, Kate Richardson, acting for Australian Marriage Equality and Greens senator Janet Rice, said Donaghue had misinterpreted her argument.
Richardson said her case was not that the postal survey should have been in the budget, but that it simply did not qualify as “unforeseen” — because it was “within contemplation” of the executive at the time the budget was prepared.
If the executive is considering a policy at the time of the budget and later makes a decision to adopt it, “we say the Advance is unavailable to them” Richardson said.
She said finance minister Mathias Cormann had erred by concluding the expenditure was unforeseen.
“Rather it was not provided for because as at May 5, the government had not made a decision about whether it wanted to have a voluntary postal plebiscite,” she said. “It was still exploring means by which it would be pursued. But it was in contemplation and was being expressly discussed by ministerial colleagues.”
Richardson also responded to Donaghue's earlier statement that a victory on matters of funding might not stop the survey, saying the plaintiffs would seek an injunction to stop the survey if successful on any count.
Donaghue also spent much of the morning honing in on the issue of standing, arguing that the use of the Advance is ultimately a matter between the parliament and the executive, and cannot be challenged by private citizens.
“There has been no case where private persons have been able to challenge the validity of an appropriation,” he said.
Questioned about whether he accepted that plaintiff Felicity Marlowe, who is a lesbian mother-of-three, had standing because the survey form invites others to judge her relationship, Donaghue said it did “no such thing” — instead blaming the current Marriage Act for any negativity towards same-sex relationships.
“This is a form that will ask the electors who receive it whether the law should be changed to allow same-sex couples to marry,” he said.
“To the extent there is any aspersion cast on the legitimacy of the [same-sex] family unit, that is a consequence of the existing law which makes a distinction.”
He also argued that Andrew Wilkie does not have standing because an MP has no more interest in a matter than the constituents they represent.