What the high court will tell us tomorrow
It usually takes months for the high court to hand down a decision, but the result in this case has been expedited due, rather ironically given one of the main questions of law at play, to urgency.
The Australian statistician David Kalisch has given an undertaking to the court that ABS will not start the voluntary postal survey until midnight on 11 September, which gives the government five days to scramble if the high court rules the survey itself, or the mechanism used to fund it, invalid.
Conversely, if the court finds against the plaintiffs, marriage equality campaigners will have five days to ramp up their campaign activities in order to try to secure a ‘yes’ majority. As Paul Karp has reported, Tiernan Brady, director of the Equality campaign, expects most people will return their postal survey form within the first 72 hours.
What we can expect when the court returns at 2.15pm tomorrow is an answer to each of the questions contained in the special case document, which ask:
- Do the plaintiffs have standing to appear in this matter?
- Was finance minister Mathias Cormann’s direction for an additional $122m to fund the survey valid under s.10 of the Appropriations Act?
- Was that expenditure within the definition of “ordinary annual services of government,” as set out in the constitution, and is that question justiciable?
- Is asking the ABS to do this survey under the “ordinary annual services” of the ABS?
- If the answer to questions two, three, or four is ‘yes’, what should be done? As relief, the plaintiffs are seeking injunctions to stop the survey.
- Who should pay costs?
Solicitor general Stephen Donaghue told the court he only required an answer to question five, which, as the court pointed out, is kind of cheating because answering question 5 will require the previous four to have been answered.
There is no indication of which way the court will go, but the plaintiffs only need to have convinced four of the seven judges of one of their arguments in order for the postal survey to be deemed invalid.
On the other hand, Donaghue only needs four of the seven to agree with his argument that the plaintiffs do not have standing to challenge this matter in the high court and the whole case will be thrown out in the government’s favour.
It does however appear unlikely that Donaghue’s claim the survey will go ahead if only the funding is deemed invalid, and not the survey itself, will prove true.
If they are successful on any count, Kate Richardson, counsel for Australian Marriage Equality said, the relief they will seek is an injunction to stop the survey.
You can read Melissa Davey’s wrap of the day here.
Updated
High court to deliver its decision at 2.15pm tomorrow
Chief justice Susan Kieflel announced the decision on the case will be handed down tomorrow, with full reasons to be published later.
That means that we will know tomorrow whether the postal survey will go ahead.
Pending an injunction, the ABS is scheduled to start sending out the postal survey forms on 12 September.
Richardson is addressing Donaghue’s claim that the Australian Bureau of Statistics would not be prevented from carrying out the survey anyway, even if the court agreed the $122m funding was invalid.
She says that the relief sought by her clients would be intended to halt the survey itself.
...the focus of the injunctions we seek are in relation to the object of the expenditure.
Richardson sits down. The hearing is over.
It appears increasingly unlikely the court will hand down its decision today. Court is set to adjourn at 4.15pm. Senior counsel for the plaintiffs, Kate Richardson, is currently rebutting some of the arguments put forward by government barrister Stephen Donaghue today. You can read a summary of those arguments here.
But that doesn’t mean we can’t make some guesses of what might happen based on how things unfolded over the past couple of days.
Lawyers representing the plaintiffs faced much more rigorous questioning from the bench. The judges seemed unconvinced by the argument that collecting opinions on same-sex marriage was any different to historical surveys that asked Australians for opinions on what Australia should look like as a nation.
Kathleen Foley, junior counsel for Wilkie, PFlag, and Felicity Marlowe, responded that those past surveys never asked Australians about their personal beliefs, prompting discussion whether opinion could be considered a statistic.
Donaghue faced less questioning when he outlined the government’s case on Wednesday. This doesn’t necessarily mean the court is convinced, but suggests that they had fewer issues with his argument that the postal survey was both unforeseen and urgent, and therefore the $122m allocated by the government outside of the budget towards the survey was necessary.
It’s safe to assume the Australian Bureau of Statistics would be confidently unpacking their envelopes and preparing to head to the post office.
Final stretch. Kate Richardson, counsel for Australian Marriage Equality and Senator Janet Rice, is now on her feet and offering her reply to the government’s arguments.
She says that the phrase “ordinary annual services of government,” which is included in the long title of the Appropriations Act and, she argues, sets a constitutional limit on the provision of financial advances under section 10 of the Act, exists independently of the legislative architecture and should be considered separately.
She says the requirement that expenditure under the Act be for the “ordinary annual services of government” cannot be waved away.
In defence of the argument that the minister did not satisfy the requirement under section 10 for the expenditure to be “unforeseen”, Richardson said the specificity argument offered by Donaghue does not gel with past practice.
Donaghue argued the postal vote was unforeseen because the involvement of the ABS, and the decision of the cabinet on 7 August, were not known by the finance minister before the budget was finalised. He said broad discussions about a postal plebiscite in March 2017 effectively did not count.
Richardson:
We say the advance is unavailable in those circumstances. And the reason is that information was in contemplation, it was being considered, so it is not ‘unforeseen’ for the purposes of section 10.
Richardson said this requirement that the expenditure be “unforeseen”, what I’m going to call generally unforeseen as opposed to specifically unforeseen, is “a safeguard” in the Appropriations Act.
She says Mathias Cormann admits in his affidavit that he was aware of the postal plebiscite conversations, which she said means it could not be considered unforeseen.
In our submission this is the easy case where the minister has given evidence that he knew.
Updated
Another non-expert take from me as lawyers wrap up their arguments: the Aus Bureau of Stats best have placed their bulk-envelopes order #SSM
— Melissa Davey (@MelissaLDavey) September 6, 2017
Replies and clarifications from Wilkie and Co
Ron Merkel QC, counsel for Wilkie and Co, is speaking now in reply to the government’s defence.
He said the arguments used by the government against the standing of his clients used a subjective authority as if it were a hard rule. He also offers an alternative history of the Appropriations Act, saying there was an “impermissible” deliberation of power that “totally removed the supervision of parliament”.
Merkel argues that Donaghue, in rebutting his original argument that Mathias Cormann did not meet the “urgency” criteria in approving the funds for the postal vote, has not given enough weight to the word.
When the current form (of section 10 of the Appropriations Act) was introduced, urgency and the word urgent had a bigger role to play than the one m’learned friend submits.
He dismissed the argument that the same mechanism had been used to approve sports centre upgrades or arts grants, saying the $122m for the plebiscite was a different sort of thing to $3m for some building works.
We don’t put that urgent is divorced from context or circumstances. From the small appropriation, it might be that that would fall within a standing appropriation or a departmental spending.
In contrast, he said, the postal survey is:
... a dramatically new policy requiring a significant new expenditure.
On the validity of the direction to the Australian Bureau of Statistics, Merkel says it is not the collection of opinion that is the problem but rather the prescriptive nature of the government’s instructions.
If it were a true statistical exercise, the government would ask for information on a certain topic and the ABS would choose the sample, weighting and questions. In this case, there is to be no weighting and both the survey pool and questions are predetermined.
Merkel:
As we understand it, a direction of this kind has never been given before.
Updated
Government case wrapped up
Donaghue has wrapped up his submissions by suggesting the court confine its response, given the urgency of the case, to answering question 5 in the special case document.
That’s a fairly tricky request, because question 5 contains within it the answers to the three previous questions.
It reads:
5. If the answer to question 2 or question 3. b) or question 4. b) is yes, what, if any, relief sought in the amended statement of claim should the plaintiffs be granted?
The judges have sought to amend that question to cut out reference to earlier questions and just say: what, if any, relief should be granted?
Stripped of legalese, that question asks: should the ABS be able to go on with the survey?
The government needs an answer to that question by Monday, because the ABS will start posting survey forms on Tuesday.
Donaghue argued it is the central question because, as previously stated, finding the funding invalid does not itself stop the survey.
In the event the court were to find that $122m was unavailable there would be a decision to me made by the government as to whether to revoke that direction. Otherwise, the duty would remain.
If you can count it, it’s a statistic
Donaghue is now focusing on the argument put by Wilkie’s case, that the Australian Bureau of Statistics cannot undertake the postal survey because it is not, technically, a collection of statistical information.
This means we are back to defining the meaning of statistics.
Here’s Donaghue’s definition:
Provided that the collection of opinions of a specified chosen population on a specified question can be counted, analysed, and used to form facts, then it can be called statistical exercise.
Basically, he says: if you can count it, it’s a statistic.
He says that whether or not you are satisfied that it is an ordinary statistical exercise, it’s certainly not a vote:
It lacks many of the ordinary characteristics in Australia of a vote. In particular it is voluntary, it is not taking place in person, and it lacks the ability to direct any particular outcome.
(That is a handily summary of the reasons why many who support marriage equality do not support the postal survey.)
On the argument raised yesterday that the ABS cannot collect opinions, Donaghue says that conducting a survey to test the public’s opinion on marriage equality is actually given as an example in a current statistics textbook.
That is possibly an unflattering reflection on how long this debate has been going in Australia, because text books do not typically have a quick turnaround.
Donaghue says there is no legal argument against the involvement of the ABS.
Updated
If you are confused trying to follow the legal arguments, Melissa Davey has wrapped them up in a handy, concise report.
You can read it here:
Donaghue is speaking to the agreed questions contained at the end of the special case document.
Question 3 of the special case is:
3. a) Does question 3. b) raise an issue which is justiciable by a court and within the scope of any matter which the court has authority to decide?
3.b) if the answer to question 3a is yes, is the determination invalid by reason that:
i. On its proper construction, s.10 of the 2017-18 Act does not authorise the finance minister to make a determination, the effect of which is that the 2017-18 Act takes effect as if Schedule 1 thereto were amended to make provision for expenditure that is outside the ordinary annual services of the government; and
ii. the expenditure on the ABS activity is not within the meaning of ‘ordinary annual services of the government’.”
Question four is similar, but asks specifically whether conducting the survey could be considered to be within the ordinary annual services of the ABS.
As discussed, that “ordinary annual services of government” phrase is found in the constitution. According to Donaghue, the court has declined to answer the question of whether that phrase is justiciable in previous cases.
Updated
‘A dangerous precedent’
In another dispatch from the National Press Club in Canberra, Tiernan Brady has rejected the suggestion that the high court case has detracted from the Equality Campaign’s ability to get out the yes vote in the postal survey.
Explaining why it had taken the case to the high court, he said:
Australia makes its decisions by parliament. The rights and responsibilities of people, those decisions are taken in that building where the people elect 150 MPs to do just that. If you take one group of people in society, forget the words lesbian or gay, and say to [them] ‘you have to reach a higher standard, a different process, before parliament will even consider whether to treat you equally’, I think that sends a dangerous precedent.
Although the Equality Campaign had taken the case, it also has “a duty to prepare” for the campaign.
I suppose, in answer to whether it is compromised, I would point to the enrolment campaign which was the biggest single enrolment campaign since federation, the AEC said, so over a million people added their names or updated their addresses.
People know this is important. They are getting ready to stand up for their friends, neighbours and work colleagues. People understand we have had a nuanced journey to getting to do something very straightforward and I don’t think it’s diminished our ability to campaign and persuade.
Updated
Donaghue has picked up his argument at the affidavit sworn by finance minister Mathias Cormann, which the plaintiffs argued indicated he had conflated “unforeseen” and “urgent” to mean expenditure for the postal survey was urgent because it was unforeseen.
Donaghue says he accepts that “the language of that particular sentence does adopt... what appears to be a shorthand link” between the two terms.
But:
On a fair reading of the document it doesn’t disclose jurisdictional error.
He now turns to the constitutional issue, which is whether the discretion to release funds under section 10 of the Appropriation Act is limited to the “ordinary annual services of government”.
The phrase “ordinary annual services of government” is contained in sections 53 and 54 of the constitution.
He says the plaintiffs have applied this rule too narrowly, saying if one was to take “ordinary” services to mean something an agency had not done before, and run a finger down the list of agencies in schedule 1 of the Appropriation Act, it would on that reading find a number of breaches.
That would, we submit, require a level of judicial review of expenditure and appropriation of the kind we haven’t seen before.
Updated
Court resumes, Donaghue still on his feet
Stephen Donaghue is back on his feet after the lunch break and is answering a number of questions taken on notice from their honours this morning.
Will we get a decision today?
Given the urgency of this matter, with the ABS hoping to start sending out postal surveys in six days time, the high court is expected to deliver its decision fairly rapidly.
That could be as early as this afternoon, but I understand that those involved in the case think that is unlikely. More likely is a response some time this week, with a meaty written judgement to follow.
Tipping that slightly is the indication that we are likely to run up to the 4.15pm finishing time hearing Donaghue’s final arguments, which are expected to run for another hour, and the replies of the two lead counsels for the plaintiffs.
But the court is likely to want to give a response as soon as it can, to allow the government to respond accordingly.
Updated
What we heard this morning
Solicitor general Stephen Donaghue will get to his final point rebutting the plaintiffs’ arguments at 2.15pm.
He has already argued that:
- the plaintiffs do not have standing to appear in the high court;
- the arguments against the validity of the Australian Bureau of Statistics’ involvement should be struck out;
- the argument section 10 of the Appropriations Act is in itself invalid does not fit with either the legislative or practical history of the Act;
- the $122m expense of funding the voluntary postal survey was “urgent” in the sense that it was an urgent need for funding to deliver a government policy;
- providing funds to the ABS to run the survey was “unforeseen” because prior to 7 August there was no plan to involve the ABS;
- both “urgent” and “unforeseen” are criteria that are open to ministerial discretion, despite counsel for Australian Marriage Equality, Kate Richardson, arguing that “unforeseen” was a “jurisdictional fact”;
- there is a high degree of specificity involved in a policy subject to an appropriation so it cannot be argued that the finance minister foresaw the expense when the idea of a postal survey was first publicly discussed by ministers in March.
Importantly, Donaghue began his address this morning by saying that even if the finance minister is found to have misinterpreted the law by accessing the $122m without parliamentary approval, that would not necessarily knock the voluntary postal survey on its head.
The ABS is conducting the voluntary postal survey in response to a directive from the treasurer, Scott Morrison. The funds were allocated in response to a directive from the finance minister, Mathias Cormann.
It is Cormann’s directive, involving the access to public funds without parliamentary approval under s.10 of the Appropriations Act, that is subject to the substantive challenge. Invalidating one would not void the other, it would simply mean the ABS had to conduct the survey within its existing budget.
That’s super dooper bad news for the ABS, which is not exactly flush. The funding Cormann provided for the survey is about a third of that agency’s annual budget.
Updated
From the press club
At the National Press Club in Canberra, the Equality Campaign executive director Tiernan Brady and Australian Marriage Equality co-chair Janine Middleton have vowed to continue the campaign whatever happens in the high court or if the survey goes ahead and returns a no vote.
Brady said the campaign has been “overwhelmed” by volunteers and they expected hundreds of thousands of supporters to make phone calls to family and friends urging a yes vote.
The call for marriage equality “grows and grows and grows ... and this issue isn’t going anywhere”. Rather the campaign will “refocus on parliament” if the survey is struck down.
Brady said it’s not a matter of politics like tax or where to build a bridge, “it’s about people’s dignity”.
Middleton says the issue is not like the republic where, if supporters lose a referendum, they will go away and come back in 20 years. Rather, they will continue to fight.
Updated
Meanwhile, in Canberra...
Tiernan Brady, Exec Director, The Equality Campaign & Janine Middleton, CEO Pinnacle Foundation, on 'Same Sex Marriage - The Yes Case' #ABC pic.twitter.com/tf5FIubZMG
— National Press Club (@PressClubAust) September 6, 2017
Things seen and unforeseen
Now to the unforeseen argument, which the plaintiffs argued thusly: given that the Turnbull government has been talking about running a plebiscite on marriage equality since 2015, attempted to get the enabling legislation past the senate in 2016, and had ministers publicly speculating about a possible postal survey in March 2017, the postal survey cannot be unforeseen. That argument was accompanied by references to finance minister Mathias Cormann’s press releases of 8 and 9 August, which referred to the postal vote as a “plebiscite” and said it was delivering on the government’s election commitment, indicating a continuation of policy.
Donaghue argued that while all that might be true, the specifics of the proposal – both the involvement of the ABS and the decision of the 7 August cabinet meeting – were unforeseen.
He argued that the way the Appropriations Act was set out, where funding is allocated by an agency in schedule one, the government could not allocate funds for an unformed plan to conduct some kind of postal plebiscite, and said it would be unreasonable to allocate funds based on “speculative possibility”.
Donaghue:
Because schedule one is listed by entity, the foresight is therefore linked to the entity.
That would be a most surprising, to say the least, approach to government appropriations… to appropriate hundreds of millions of dollars at least on a speculative possibility.
With that, court has risen for the lunch break. It will resume at 2.15pm.
Updated
‘Urgent’ and ‘Unforeseen’ bookends
Donaghue says that the “urgency” and “unforeseen” criteria act as “bookends” in the Appropriations Act.
Unforeseen addresses why the funding request was not in the budget, and urgent why it is not waiting for the next budget.
He says the decision of cabinet on 7 August that it would require the ABS to conduct a voluntary postal survey and would request the result by 15 November, created the urgency.
In our submission it was open on the ordinary meaning of the words for the finance minister to be satisfied that it was urgent in the meaning of the Act.
M’learned colleague Melissa Davey sums up part of the argument:
Donaghue cites urgent funding for sports stadiums and arts centres as evidence that surely money for the postal survey could also be urgent.
— Melissa Davey (@MelissaLDavey) September 6, 2017
Donaghue arguing that if gov didn't have to go to parliament for 'urgent' funding for arts and sports, then why should it for postal survey?
— Melissa Davey (@MelissaLDavey) September 6, 2017
Updated
Now to the “urgent” and “unforeseen” bit, which is a question of whether the finance minister erred in law or misconstructed the act by making the appropriation.
Both criteria are questions of “ministerial satisfaction,” he said. That is, they are not objective criteria.
The plaintiffs argued that urgent should be defined as cases where external circumstances, such as a natural disaster or military emergency, create an urgent need for funds, or when it is too urgent to allow the government to return to parliament and seek a special appropriation.
Donaghue says “urgent” is not so confined because it is connected to a need for expenditure, and external causes are not the only things that give rise to an urgent need for expenditure.
... it can also be connected to a need for expenditure to a government policy.
He says the urgency of government policy is a matter of considering a range of priorities and timeframes, and court is “not well-placed to make the judgement”.
He adds:
It is not an error of law for the finance minister to conclude, in circumstances where cabinet has decided that a particular policy should be pursued and pursued within a specific time frame, [that it is urgent]. It is open to the finance minister to decide that the funding is urgent in that circumstance.
He says it has not been parliamentary practice to put all requests for extra funding to parliament as a special appropriation, and argues that would not be practical.
Parliament receives annual reports on the use of the advance. Donaghue is listing a number of recent examples. They are all expenditures of a couple of million dollars for projects such extending an arts centre or upgrading a building.
Worth noting that while the $122m allocated to the postal survey is within the $295m cap, is a larger single sum than any of the examples just provided.
Updated
The first part of this argument, detailed in the previous post, was intended to rebut the argument put by Wilkie and Co that section 10 is in itself invalid, because of changes in the way it is drafted in recent years.
Having delivered a potted legal history tailored to highlight the flexibility of advances to the treasurer under the Appropriations Act, Donaghue concludes:
The criteria have never been more detailed than they are now.
He says the court should reject the ground challenging the validity of section 10.
Updated
Stephen Donaghue has now turned his argument to whether the advance to the finance minister was valid under section 10 of the Appropriations Act, and met the criteria of being “urgent” and/or “unforeseen”.
He has addressed this argument by taking the last 10 minutes or so to run through the history of appropriations law in Australia, beginning with “the very first act ever put before the parliament” in 1901.
That act made a reference to expenses being “unforeseen”.
What followed was a series of historical examples of parliament seeing appropriations as, essentially, “book keeping” and allowed it to operate in such a way as to be flexible and best serve the treasurer of the day.
It included, at one stage, a change in the language from “unforeseeable” to “unforeseen”, because it was felt that “unforeseeable would be too strict.”
From our learned friends on twitter:
Overarching theme=its emphasis upon facilitating ministerial judgment. Don't bury its unspoilt, flexible nature beneath judicial concrete https://t.co/GVUCa6Uamb
— Darren O'Donovan (@DarrenODonovan) September 6, 2017
Updated
In brief:
So to summarise Donaghue [the gov's lawyer] is submitting that 1] those bringing the case against the gov have no standing to do so 1/3
— Melissa Davey (@MelissaLDavey) September 6, 2017
2] That the postal vote doesn't challenge the validity of same sex couples family, rather the existing marriage act does that.
— Melissa Davey (@MelissaLDavey) September 6, 2017
and 3/3 - that the claim that the involvement of the Australian Bureau of Statistics is invalid is a “weak” one.
— Melissa Davey (@MelissaLDavey) September 6, 2017
Donaghue: the survey does not cast aspersions on the validity of LGBT+ relationships
The second plaintiff in the Wilkie case, Felicity Marlowe, argued yesterday that she had a special interest for standing to appear in this case because it was essentially asking 16 million people to give their opinion on the validity of her family.
Justice Geoffrey Nettle asked whether people in LGBTI+ relationships might have standing, if they are:
...so offended by receipt of the document by reason that it occurs to them as others being able to pass judgement on their sexuality.
Donaghue says it is not the survey itself, but “third parties” – i.e. the “no” campaign – that could be said to be calling into question the status of certain families.
That argument is based on the assumption that “the mere fact of having the survey calls into question the status of their relationship”.
Our submissions on that is the receipt of the form does no such thing. This is a form that will ask the electors that receive it whether same-sex couples should be allowed to marry.
[Any aspersions are] a consequence of the existing law that poses a distinction between same-sex and other couples.
He says that simply asking the question “doesn’t cast the aspersions as projected”.
Updated
In summary, says Donaghue:
Our submission is not that the appropriation is meaningless, it is that it is not judicable at the suit of a private individual.
On the separate arguments by independent MP Andrew Wilkie and senator Janet Rice that they have a special interest by virtue of being members of parliament, and that their rights as parliamentarians were circumvented by the government essentially going around parliament to fund the postal survey, Donaghue says they have no special legal rights to challenge this law.
Donaghue:
Our submission is it is wrong to include that a parliamentarian has a roving interest to enforce laws that parliament has passed.
The “only exception,” he said, is the attorney general.
What about a shadow attorney, asks one judge?
An awkward laugh from Donaghue. That was a reference to Combet v the Commonwealth [2005], a case which included then shadow attorney general Nicola Roxon taking the government to court to challenge the use of public funding for WorkChoices ads. Combet was the secretary of the ACTU at the time. The case failed, but both the majority and dissenting judgements have been referred to in this hearing.
Updated
On the issue of standing
Donaghue has argued that private citizens have no standing to challenge an order made under the Appropriations Act, even if they feel it is unconstitutional.
He says that is because it has no effect on rights.
That is, that the bare movement of funds does not have any effect on anyone’s rights. Not that the spending has no effect on anyone’s rights, but he argues that is not relevant.
Justice Virginia Bell says the authorities on this matter say “that the attorneys of the states have an interest in reinforcing constitutional limits within the federal compact”.
… why is it said that in such a circumstance a citizen may not have the same interest in enforcing the limits of power?
Donaghue said the states have an interest “only as a fallback”.
Bell again:
That’s the very matter I am taking up with you. If there should always be someone to enforce the limit of power where there is a suggestion that constitutional limitation is not being complied with, and in the case where the states are not interested...
Donaghue:
Your honour, always someone who can but not always someone who will. That’s why we have the standing rule.
Bell:
Perhaps a degree of flexibility is necessary where the consideration is the limits of constitutional power.
Updated
Some thoughts from Latrobe University senior lecturer in Administrative Law, Darren O’Donovan, on the argument Donaghue put earlier. That is, that deeming the additional funding to the ABS invalid would not necessarily prevent it from undertaking the survey.
Pretty bracing submission by S-G - a lack of funds would boost ABS' freedom to sample in choosing how to comply with Minister's direction https://t.co/9alzNaCeE1
— Darren O'Donovan (@DarrenODonovan) September 6, 2017
Updated
The Auckland Harbour Board principle
Donaghue is arguing that the appropriation of funds by government is not a judicable action. He is making the argument as part of a challenge to the standing of the plaintiffs to challenge the postal survey, but has taken it slightly higher than that by saying that it’s not something for the court to decide at all.
Their honours have some questions. There is a prohibition on withdrawing money from the treasury in the absence of an appropriation. Is that a judicable appropriation, justice Stephen Gageler asks?
No, Donaghue submits.
Gageler refers to the authorities:
I have never heard a submission to that effect before but if that is the submission, how do you explain the Auckland Harbour Board principle?
The Auckland Harbour Board principle is that “an amount paid by the Commonwealth out of consolidated revenue without a valid appropriation may be recovered.”
From the Australian Government Solicitor’s Office:
This could occur if a condition on which money was appropriated by statute had not been met at the time of the payment or if the money was paid out by mistake, even though not otherwise recoverable.
Donaghue argues that we do not get to that point, because the appropriation does not get to the stage that private citizens are involved.
The point where the private citizen’s interests are engaged are the point at where the money is spent... the appropriation is nothing more than an earmarking of funds. It has no effect on rights.
Updated
Stopping the funding doesn’t stop the survey
Donaghue begins his argument by saying that the grounds that the involvement of the Australian Bureau of Statistics is invalid is “extremely weak”.
He suggests that’s why the claim put by Australian Marriage Authority and senator Janet Rice didn’t even go to that argument.
Donaghue:
If that part of the Wilkie proceedings fails then the premise is there is a valid direction to the statistician requiring the statistician to collect the information set out in that direction.
That’s relevant, he said, because it means that even if the plaintiffs succeed in claiming that the finance minister failed to address the “urgent” and “unforeseen” criteria in the Act, there’s nothing to say the ABS wouldn’t carry on and do the survey anyway. They would just have to do it using the $341m allocated to them in the budget, rather than the additional $122m appropriated by the finance minister.
Donaghue:
One is left wondering why the ABS can’t, and indeed is not required to, continue to carry out the survey and to use the funds that are appropriated to it under schedule 1 of the Act.
He continues:
Nothing that is put on the financial side of the case deals with the fact that the survey can proceed.
Donaghue says he will also challenge the assumption that the plaintiffs have standing to appear before the court – that is, that the Commonwealth even has to listen to their complaints. That is because the crux of the matter is the function of the Appropriation Act, and:
There is no case where private plaintiffs have been found to have validity to challenge an appropriation … plaintiffs in that respect are seeking to break new ground.
Updated
The court now returns to the marriage equality hearing. Kathleen Foley, junior counsel for Wilkie and Co, offers a clarification on the ABS’s Australian Yearbook 1908, which is part of the argument she presented yesterday against the involvement of the ABS.
Solicitor general Stephen Donaghue is on his feet now.
Updated
Assumptions of fact in the government’s arguments
According to the statements of claim filed by the government in both matters, the defence argument will be relying on a number of assumptions of fact before making its legal argument.
These assumptions expand on or emphasise points agreed on in the special case.
They are:
- That when the Turnbull government announced its commitment to hold a vote on marriage equality on 13 September, 2016, it committed to a compulsory plebiscite conducted by the Australian Electoral Commission.
- That the suggestions by some government ministers of “alternative means” to conduct a plebiscite did not represent government policy and at no stage mentioned the involvement of the Australian Bureau of Statistics.
- That the emails between the department of finance and the attorney general’s department, which were subject to a Freedom of Information request and refer to a postal plebiscite, cannot be taken to mean that cabinet considered a postal plebiscite.
- That holding a compulsory attendance plebiscite conducted by the AEC remained the government’s policy at the time of the 2017-18 [budget].
- That a voluntary postal survey conducted by the ABS only became government policy from 8 August, 2017.
Updated
Court has resumed
The full bench of the high court has returned. It will deliver a decision on another matter then hear the government’s arguments on the postal survey.
Court resumed briefly to hand down its decisions on five other matters, most of which concerned immigration claims.
The marriage equality hearing will resume at 10.15am.
Updated
Hearing from a number of disgruntled lawyers in the commonwealth law courts building in Melbourne that the queue to get through security has snaked back to William Street, which is quite a way.
The crowd is here to watch the marriage equality hearing.
The lawyers who usually stalk these halls, which house federal and family court matters, have never seen the like.
Buzzfeed’s Lane Sainty confirms.
The line to get into the law courts today is even longer than yesterday... winds around the corner down Williams St.
— Lane Sainty (@lanesainty) September 5, 2017
Updated
In Canberra, the question for Coalition MPs today is: what should happen if the high court knocks down the postal survey.
Liberal MP Craig Kelly told Guardian Australia, in that event the compulsory plebiscite should “obviously go back to the Senate again”.
The first step is to wait for the high court result. Then, if necessary, to put it up in the Senate again. It would be in everyone’s interests to do that: people who want a free vote, would be able to say we’ve tried a plebiscite three times so let’s have a free vote; and those on the no side support our policy which is not to change the Marriage Act without the imprimatur of the Australian people.
Kelly believes the debate has “moved on” from when it was blocked in November and again in August, because advocates have shown they are prepared to campaign in the postal survey.
While Kelly won’t be drawn on what happens if, as expected, the Senate blocks the plebiscite bill again, Liberal MP Ian Goodenough has said the plebiscite policy should stay, into the next election.
Goodenough told ABC News Breakfast he does not want to preempt the high court decision because “our advice is that the postal survey will be carried as far as our advice is concerned”.
My position in the party room would be to take it to the same policy that we took to the election, and that a full plebiscite [is] to be held before proceeding with any private member’s bill ... we took it to the election as an election commitment so we’re eager to abide by that.
Liberal senator Dean Smith told ABC News on Tuesday there should be a “calm, measured response” if the high court rejects the postal survey “to give people a little bit of space to think about what their next considerations are”.
That sounds like he’s no fan of any rushed attempt to bring a bill and force him and other pro same-sex marriage Liberal MPs to show their hand about whether they are prepared to cross the floor.
He said:
There have been some changes in the environment since the party room had its discussion to pursue the postal survey – the most obvious of that is there has been, I would argue, a groundswell of support in favour of the yes campaign. But let’s not get ahead of ourselves – let’s respect the decision of the high court, whatever that decision is.
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The minister steps in
The strongest arguments against the legality of the postal survey rest on whether the finance minister, Mathias Cormann, acted correctly in issuing the direction under section 10 of the Appropriations Act 2017-2018 to allow the expenditure of $122m without the approval of parliament.
You may recall that Ron Merkel QC, counsel for the plaintiffs in the Wilkie and Co matter, argued Cormann appeared to have interpreted the criteria that extra expenditure be “urgent” and “unforeseen” in such a way that it would offer him “unbridled discretion” in dipping into state coffers.
The minister himself disagreed, taking to Twitter to argue the point 24 hours before the esteemed solicitor general is scheduled to do it for him.
Plainly not true. Firstly, amount of Advance limited by Parliament. Secondly expenditure has to be constitutional (check s.51(xi)) and 1/2 https://t.co/62okhqza3F
— Mathias Cormann (@MathiasCormann) September 5, 2017
and authorised by relevant legislation (check Census and Statistics Act 1905 in particular and ABS Act 1975) 2/2 https://t.co/62okhqza3F
— Mathias Cormann (@MathiasCormann) September 5, 2017
The limit Cormann mentions is $295m, an amount the court at one point described as small. Merkel argued yesterday that:
... constitutional validity cannot depend on an amount.
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Before we dive into an explanation of the legal arguments expected this morning, let’s look at some of the campaign material floating around.
If the high court does not rule the postal survey invalid, the ABS will begin stuffing envelopes and have them in the post from 12 September.
To prepare supporters for this fiendishly difficult one-question survey, someone from the yes campaign has created a game to warn against the obstacles in place for those who wish to see marriage equality.
I am spectacularly bad at this game, it turns out, so I cannot truthfully say that it contains no pertinent information about how the vote would work. Still, one cannot be too prepared.
Man, I am really bad at this game. https://t.co/Z5jxSfu7eY ht @Paul_Karp pic.twitter.com/gBlefsqhRd
— Calla Wahlquist (@callapilla) September 5, 2017
Meanwhile, multilingual posters supporting the no campaign have popped up in Sydney, according to journalist and medical student Amy Coopes.
Meantime, #RespectfulDebate im Beverley Hills, Sydney#sponkethemonkey pic.twitter.com/OXMNuY7Cqt
— Amy Coopes (@coopesdetat) September 4, 2017
There is some doubt about its provenience.
very strong chance those Chinese or Arabic anti-SSM flyers you see are actually made by English speakers, not the ethnic community https://t.co/DHFONaudLk
— Naaman Zhou (@naamanzhou) September 5, 2017
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What to expect today
Having listened dutifully to the submissions made by two sets of plaintiffs opposed to the voluntary postal survey on marriage equality, the full bench of the high court will today hear the government’s defence.
This afternoon it is expected the court will provide a limited response that will determine whether the survey is legally valid or not.
A quick word on what we might expect from the government’s submissions:
Solicitor general Stephen Donaghue QC will argue that while a plebiscite on marriage equality could not be said to be unexpected at the time the government finalised its expenditure for the 2017-2018 financial year, a voluntary postal survey carried out by the Australian Bureau of Statistics, in this form and at this time, was both unforeseen and urgent.
Indeed, it is a settled fact by all parties that the involvement of the ABS was first settled at the cabinet meeting on 7 August, and the Australian statistician, David Kalisch, who is named as a defendant in both high court challenges, was informed on the same day.
Donaghue will also argue that because the challenge is basically one of administrative law against a direction issued under the Appropriations Act, it must take into account the special nature of appropriations themselves, which he will argue are a) difficult for a private person to challenge because they do not “confer rights or privileges nor impose duties or obligations”; and b) matters in which the court has a “limited role”.
The government’s full submissions, along with the submissions filed by the plaintiffs in Wilkie and Co and Australian Marriage Equality and Co are available on the high court website.
You can catch up on what happened yesterday here and read Melissa Davey’s wrap of the day here.
The hearing will resume at 10.15am.
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