Explainer: The High Court Marriage Equality Postal Survey Case

Who is bringing this case?

There are two cases being heard at the same time. Both are trying to stop the postal vote concerning marriage equality from going ahead.

The Public Interest Advocacy Centre is bringing a case (the Wilkie case) on behalf of Andrew Wilkie, the Independent member of Parliament for the Tasmanian electorate of Denison; Felicity Marlowe, a Melbourne mother in a same-sex relationship with three children, and advocate for Rainbow Families; and PFLAG Brisbane (‘Parents and Friends of Lesbians and Gays’), with their national Spokesperson Shelley Argent.  Our barristers are Ronald Merkel QC, Kathleen Foley, Christopher Tran and Simona Gorey.

Our friends at the Human Rights Law Centre are bringing a case (the AME case) on behalf of Australian Marriage Equality and Janet Rice, a Victorian Greens Senator. Their barristers are Katherine Richardson SC, James Emmett, Gerald Ng, and Surya Palaniappan.

 Why are we bringing the case?

A postal vote on same sex marriage is unnecessary, divisive and harmful. Parliament can and should decide the issue of marriage equality, just like it decides other important issues.

The case raises important public interest issues about how power is exercised in our system of government. The government is acting without the approval of Parliament, contrary to the general rule that Parliament must approve government spending. This undermines the role of Parliament and weakens the checks and balances that are essential for a healthy democracy.

Shelley Argent from PFLAG has said that she is involved in the case because, ‘the parents of LGBTI Australians have said that they don’t want to see our children subject to such a demeaning, hate-filled and pointless vote that will go nowhere and resolve nothing.’

Felicity Marlowe is worried about the impact the public campaign will have on her children, same-sex partner and LGBTIQ families across Australia.

Andrew Wilkie has consistently advocated against executive overreach and has said Parliament should decide if, when and how the people are consulted, and how it is paid for. 

What are the cases about?

Both cases are arguing that the government does not have the power to go ahead with the postal vote.

A central issue in the cases is the way the government is funding the postal vote. The general rule under the Constitution is that government needs the approval of Parliament (an ‘appropriation’) to spend money. Parliament has not approved money being spent on a postal vote.

Instead, the Finance Minister, Mathias Cormann, has tried to use a power called the ‘Advance to the Finance Minister’ to pay for the postal vote.

The government has asked the Australian Bureau of Statistics to be responsible for the process, with help from the Australian Electoral Commission.

In the Wilkie case, the plaintiffs (Andrew Wilkie, Felicity Marlowe and PFLAG) say:

  • The ‘Advance to the Finance Minister’ is not a valid power. It tries to get around the general rule that Parliament has to approve government spending by giving the Finance Minister what amounts to a blank cheque. This is contrary to the Constitution.
  • Even if the Finance Minister does have the power to make an Advance, he did not validly use the power in this situation. This is because 

a. The power is reserved for ‘urgent’ cases. While many people are anxious to see this issue resolved, there isn’t anything urgent about holding a postal vote on marriage equality – it is an issue that has been discussed for years and can simply be resolved by a vote of Parliament.

b. The spending needs to have been ‘unforeseen’ before the May Budget. The idea of a postal vote has been around since before May – government Ministers were talking about it in the media in March.

  • Even if government can spend the money, it can’t get the ABS to conduct the process because it’s not really about ‘statistical information’. It is really a postal vote on whether the law should be changed and the ABS does not have the power to conduct votes.
  • The AEC can’t be involved in this process because it is not an ‘electoral matter’ – it’s a vote about whether the law should be changed, not an election.

In the AME case, the plaintiffs (AME and Senator Rice) are arguing:

  • The Finance Minister did not validly use his power to make an Advance, because the spending is not urgent and it was not unforeseen before the May Budget. This is similar to argument two in the Wilkie case.
  • The power to make an Advance that the Finance Minister tried to use is limited to spending for the ‘ordinary annual business of government’ (because that is the purpose of the law that creates the Advance). The postal vote on marriage equality is not the ordinary annual business of government. It is a unique, complicated and expensive process.

What is ‘standing’ and do we have it? 

The Government will challenge whether our clients have ‘standing’ to allow them to bring the case. To have ‘standing’ a party needs to be able to show the court they have a special interest in the case because they are directly affected.

We believe that all of our clients have a special interest in the decision to hold a postal vote without the approval of Parliament.

  • PFLAG is a body that exists to support the families of LGBTIQ people and to advocate for the rights of LGBTIQ people.
  • Andrew Wilkie is a member of the House of Representatives who voted against the original Plebiscite (Same-Sex Marriage) Bill in 2016. He has a special interest in ensuring that public money is spent lawfully.
  • Felicity Marlowe lives with her female partner of 17 years and their three young children. Felicity is concerned about the impact of the postal vote, and the public process surrounding it, on her wellbeing and that of her partner and children. She expects that her family will be subject to vilification and have the legitimacy and value of their family called into question.

What happens if we win?

If the cases succeed, the postal vote will not go ahead. It will then be for the government to consider how to deal with the issue.

If the cases are not successful, the postal vote will go ahead from 12 September. 

When and where are the cases on? 

The cases are being heard in the High Court in Melbourne on Tuesday 5 and Wednesday 6 of September at the Commonwealth Law Courts, 305 William Street, Melbourne.

It is being heard by a Full Court, meaning all 7 judges of the High Court will hear the case. You can read about the current Justices of the High Court here.

The High Court does not usually allow electronic devices into the court, but on this occasion the case is likely to be broadcast into a second courtroom (also at the Commonwealth Law Courts in Melbourne) in which electronic devices can be used (for live Tweeting etc). 

When will there be a decision?

The High Court might give its decision at the end of the hearing, or it might take some time to make a decision.

The government has agreed that it will not start sending out any papers for the vote until 12 September.  If the High Court does not make a decision before 12 September 2017, we can ask the Court for an order that no papers for the vote are sent out until a decision has been made.

Where can I find more information about the case?

The High Court website publishes submissions once they are filed as well as other information, including the transcript of the hearings.

You can find the submissions here for the Wilkie case and here for the AME case.

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