High Court challenge: SSM postal survey

PIAC CEO, Jonathon Hunyor outside the High Court in Melbourne.

In September 2017 PIAC challenged in the High Court the decision of the Commonwealth government to hold a postal survey on same sex marriage.

The government’s decision was controversial. It by-passed Parliament, which had already rejected attempts to hold a compulsory attendance plebiscite, and allocated $120m in funding under an ‘advance to the Finance Minister’ power that was reserved for urgent and unforeseen circumstances. It was also the first time in Australia’s history that an issue of human rights had been decided by popular survey.

PIAC brought the 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.

The Human Rights Law Centre also brought a case (the AME case) on behalf of Australian Marriage Equality and Janet Rice, a Victorian Greens Senator.

The two cases were heard at the same time.

‘These cases raised important issues about the way that power is exercised by government and the role of parliament in our democracy,’ said PIAC CEO, Jonathon Hunyor.

‘The postal vote on same sex marriage was unnecessary, divisive and harmful. It is the parliament’s job to decide the issue of marriage equality, just like it decides other important issues. Human rights issues should not be resolved by popular survey: it is a dangerous precedent that undermines protections for minority groups.

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.’

Felicity Marlowe was 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.

The cases were heard in Melbourne on 5 and 6 September 2017. PIAC was represented by Ronald Merkel QC, Kathleen Foley, Christopher Tran and Simona Gorey, all acting pro bono.

On 7 September the High Court of Australia confirmed that the government’s decision to hold and fund the postal vote on same-sex marriage was lawful. You can read the judgment here.

‘This was a disappointing outcome but PIAC is proud to have assisted our clients in testing the limits of government power, particularly in a case where the right to equality before the law is in issue,’ said Jonathon Hunyor.

‘This was a quintessential public interest case and our clients were brave to bring it.’

Read the case explainer, or find media coverage of the case.

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