At the end of the day, where did we get to?
Counsel for the plaintiffs in both separate claims have wrapped up their arguments.
While it would be thoroughly unwise to ever presume the outcome of a high court decision, their honours challenged a number of assumptions put in the plaintiffs’ arguments.
In brief, the arguments were:
- That the finance minister, Mathias Cormann, “misdirected himself” by issuing a direction to release $122m to fund the postal survey under section 10 of the Appropriations Act on the grounds that it was both “urgent” and “unforeseen”.
- That the expenditure could not be taken to be “urgent” because the Senate was sitting and able to see a special appropriations bill to fund the survey, and because the deadline of 15 November was arbitrary and self-imposed.
- That it could not be seen as “unforeseen” because Cormann had conversations with colleagues as early as March about “alternative measures” to deliver on the promise of a plebescite, and by the wording of his press releases on 8 and 9 August clearly meant that the ABS postal survey be taken as a delivery of that promise and to in effect be considered a plebiscite.
- That the Australian Bureau of Statistics was not authorised to undertake this postal survey because it was a binary yes/no question and could not therefore be properly called a statistic, and because the ABS was not established to survey matters of personal opinion.
- That the Australian Electoral Commission was not authorised to provide electoral roll information to the ABS for anything other than the gathering of statistical information, which this was not, and was not authorised to provide the enrolment details of silent electors.
We’ll see you back here tomorrow morning for the government’s response.
Updated
Richardson asks that “given the urgency” the court restrict its decisions this week to the key question of whether the survey is unlawful, and then puts off the full finalisation of relief to a single judge.
And with that, the court has adjourned. It will resume at 10.15am tomorrow to hear the case of the commonwealth.
Updated
Richardson about to wrap up, but she finishes by addressing the standing of the plaintiffs she represents – Senator Janet Rice and Australian Marriage Equality – to challenge the matter in the high court.
She argues Rice has a special interest because the government, in its own admissions, has bypassed the Senate, and that is of special interest to Rice.
Updated
‘Unprecedented in Australian history’
Richardson has turned to another line of argument that the funding the postal survey through s.10 of the Appropriations Act was unlawful.
She says the Appropriation Act can only be used to fund ordinary annual services, being an activity that a government department or body has done before.
It is an agreed fact that nothing like the voluntary postal survey has been done before.
Richardson argues:
It must be common ground that in substance if not form what the ABS has been directed to do is conduct a plebiscite …
There’s no dispute between the parties that the activity the ABS has been asked to conduct is unprecedented in Australian history, that being a survey to seek the opinion of 16 million people on the electoral roll.
The commonwealth case put forward a number of examples of the ABS undertaking similar surveys before, but the largest it could point to was a poll of 60,000 people on the national anthem in February 1974. That’s 0.3% of the number of people to be included in the voluntary postal survey, Richardson said.
She adds:
The only three instances in Australia of a plebiscite being held have all been subject to special legislation.
Updated
Richardson is conducting a line-by-line analysis of Mathias Cormann’s press release of 8 and 9 August, which makes one wonder if some hapless press secretary is getting chewed out right now.
The headings of the press releases are telling, she says:
Commitment To A National Plebiscite On Same Sex Marriage
and
Next Steps For A National Plebiscite On Same Sex Marriage
The latter begins:
The Turnbull Government is committed to deliver on its pre-election promise to give the Australian people a say on whether or not the law should be changed to allow same-sex couples to marry.
Richardson says that in light of those statements the only element that could be considered unforeseen is the involvement of the ABS, and argues that it is the expenditure, not the agency that will spend it, which must be unforeseen for a release of funds under s.10.
She concludes:
...it’s apparent that no decision maker in the shoes of the minister acting reasonably could have reached that view.
Richardson is now arguing that s.10 of the Appropriation Act should be read as intended to fund ordinary government operation.
If it is not so limited, “it would effectively amount to a power to appropriate for any purpose at all.”
A debate on terminology between the judges and Richardson on the importance of Cormann referring to a voluntary postal plebiscite as opposed to a voluntary postal survey.
In his statements and direction on 7 August and for the next few days, Cormann called it “a voluntary postal plebescite”.
Indeed the headline of his media statement on 7 August was: Commitment to a National Plebiscite on Same Sex Marriage.
Richardson:
It’s clear at the time that the minister was clear in his mind that in terms of the criteria under section 10 that there was a need for expenditure, expenditure was for a voluntary postal plebiscite.
However, in his sworn affidavit to the court, Cormann calls it “a voluntary postal survey”.
The court sees that as significant because a postal survey is a very different vehicle to a postal plebiscite.
Richardson argued that Cormann’s interchangeable use of the terms should be taken to mean they were, in effect, one and the same.
Which means that, given Cormann knew in March that his colleagues were looking at alternative means to deliver a plebiscite, it cannot be said to be unforeseen.
The involvement of the ABS did come late, but Richardson said it could appropriately have been funded by being placed in an estimates bill later in the year.
Updated
On that interesting legal term we heard earlier:
@callapilla A Henry VIII clause is a clause of an Act which enables the Act to be amended by subordinate legislation or Executive action
— Viscount Hinemoa (@pananian) September 5, 2017
Unforeseen delivery of a long-term policy
Richardson says that Mathias Cormann’s own affidavit, which forms part of the special case documents, supports the argument that the expenditure could not have been unforeseen because the government was actively looking at alternative means to “give the Australian people a say on marriage equality”.
Richardson said this proves that “it was not just a policy of compulsory plebiscite or not at all”.
From Cormann’s statement, read aloud by Richardson:
From about March 2017 to August 2017 I was aware of suggestions from parliamentary colleagues to alternative means by which the government’s policy might be pursued.
Cormann continues:
At the time that (appropriations bill) was introduced it was not the government’s position that the ABS should conduct a survey and I did not foresee that the government would rule on 7 August that the ABS should conduct a postal survey.
Richardson argues that is a very narrow reading of “unforeseen”.
It’s plain that the minister has defined what must be unforeseen narrowly and erroneously, that is, he has focused on the particular body that must incur the expenditure, that is the ABS.
She argues that the body requiring the expenditure doesn’t matter – the government knew it wanted to hold some form of plebiscite or postal survey and that some government authority would have to conduct that survey and bear the cost.
Richardson says the act is not written just to fund unforeseen turns of government policy and cites a number of more “orthodox” uses, such as releasing funding to respond to a natural disaster or international incident.
Basically, she argues: Cormann can’t both say he is delivering on a commitment to give the Australian people a say when announcing the postal survey, and claim that the survey itself was unforeseen.
Updated
Justice Geoffrey Nettle with a hypothetical on the limits of the standing appropriations power under section 10 of the act.
What if, just for arguments sake, there is an escalation of tensions in Asia that necessitates the expenditure of urgent and unforeseen funds for defence, possibly for some kind of new and powerful weapon.
Just a hypothetical example, you understand. No reference to current events.
Updated
‘An absurd and unwarranted degree of precision’
Richardson says that even if unforeseen is not taken to be a jurisdictional fact, the commonwealth’s interpretation puts “an absurd and unwarranted degree of precision” on the meaning of the word “unforeseen” so as to make section 10 of the Appropriations Act unreasonably broad.
Richardson:
What the government says is what must have been unforeseen is that cabinet would make a decision on 7 August 2017 that the ABS should conduct a voluntary postal plebiscite.
She criticises the commonwealth’s focus in its defence on the involvement of the ABS, which on the agreed facts is the only element of the policy not considered prior to the closing off of the appropriations bill No 1 and No 2.
The ABS and other government-run institutions are considered to be part of government, she says; they have “no distinct legal personality” so the involvement of the ABS or otherwise is not a material change.
Updated
Richardson argues that while the question of whether expenditure is urgent under s.10 of the Appropriations’ Act is at the discretion of the minister, whether it was unforeseen remained a question of “jurisdictional fact”.
Justice Keane questions that it’s a jurisdictional fact. “It says to his (the minister’s) satisfaction.”
Chief justice chips in Kiefel:
The ordinary meaning is that the minister is satisfied that there is an urgent need for expenditure on account of, for the reasons given in a) and b)
Richardson says that because it’s a “Henry VIII clause”, saying unforeseen is a “jurisdictional fact” is the “preferred construction.”
I’ll put a pin in Henry for later.
Updated
The unforeseen argument
Merkel was clearing up a legal reference from earlier.
Kate Richardson SC, acting for Australian Marriage Equality and senator Janet Rice for the Human Rights Law Centre, is on her feet now.
Her submissions will focus on the question of the expenditure for the survey being unforeseen, in the meaning of s.10. 1) b) of the Appropriations Act 2017-18.
In the statement of claim, the HRLC argues that “it is the need to put public funds toward the ‘payment for expenses’ in the conduct of a postal plebiscite that must be unforeseen,” rather than the liability of the Commonwealth attached to the activity of any particular agency.
If the act allows “that expenditure on the specific form of an activity and on a specific set of terms” must be unforeseen, it argues, then it could be applied to such a broad range of circumstances that the limitation of “unforeseen” in the Act “would impose no real constraint at all.”
She argues that “urgent” is a separate and distinct test to “unforeseen” but that the finance minister, Mathias Cormann, appears to have conflated the two.
That is, he appears to have reasoned that the expenditure was urgent because it was unforeseen.
That doesn’t count, she says.
Foley has wrapped up her arguments against the ABS’s involvement and has turned to the particular role given in this proposal to the Australian Electoral Commission.
She says:
The AEC has no power ... to assist the ABS in conducting the survey by dispatching forms to silent electors.
The only permissible role we say the electoral roll has is in providing roll information to the ABS. And that is only permissible for the collection of statistical information.
So: if we do not consider the postal survey to be a gathering of statistics, then the AEC cannot provide the electoral roll data to the ABS.
Back to Ron Merkel QC now.
Updated
Legally substantiated tinfoil hats at the ready.
"The government submits that “statistical information” extends to “data of any kind”.
— Anna Johnston (@SalingerPrivacy) September 5, 2017
Given the Gov can direct ABS what to 'survey' & ABS can fine ppl who don't answer, the gov submn suggests ABS is a surveillance tool of Gov
— Anna Johnston (@SalingerPrivacy) September 5, 2017
Updated
Court resumes for the afternoon
Kathleen Foley, junior counsel for Ron Merkel QC, is on her feet resuming her argument on the invalidity of using the Australian Bureau of Statistics to determine questions of marriage equality.
She begins by defining “law reform” vs “law”.
Before we begin, here’s a summary of the main arguments of the morning from my colleague, Melissa Davey.
Court will resume in 15 minutes and run through until 4.15pm, so it’s an ideal time to make a cup of tea and put your constitutional arguments at the ready.
I understand that the rest of Kathleen Foley’s arguments on behalf of Wilkie et al, which includes the tail of the arguments against the involvement of the ABS on a survey of this kind and the arguments against the validity of the Australian Electoral Commission being involved in this way, are expected to be brief.
They will be followed by Kate Richardson, who has been briefed by the Human Rights Law Centre to act for Australian Marriage Equality and senator Janet Rice.
Theirs is a narrower argument, focused on whether or not the postal survey can truly be said to be unforeseen when a plebiscite on marriage equality has been official Coalition policy since 2015.
I’ll run through their arguments in chief in a minute.
Updated
Over on the Politics Live blog, Katharine Murphy reported earlier that Greens senator for Tasmania, Nick McKim, has indicated that his party would support the marriage equality bill drafted by Liberal senator for Western Australia, Dean Smith, on the event it gets put before parliament.
Smith released the bill on 5 August and argued it should be subject to a free vote. Three days later, the plebiscite was recast as a voluntary postal survey and the current action began.
Said McKim:
If that’s the bill that ends up being put before the parliament, we will support it.
Guardian essential poll: 59% support changing the law to allow marriage equality
While we’re talking about surveys on marriage equality, the latest Essential Poll for Guardian Australia says that 59% of respondents support changing the law to allow same-sex couples to marry (up 2% from a fortnight ago) while 31% (down 1%) are opposed.
Unsurprisingly, Labor voters (73%), Greens voters (82%), women (65%) and younger people aged 18-34 (69%) are more likely to support it.
On the voluntary postal survey itself, 62% said they will definitely vote in the ballot if it survives the high court challenge and 16% said they probably would, a response I suspect is dependent on them happening upon a post box when it comes time to send in the response.
Those who plan to vote yes are apparently more motivated to respond than those who plan to vote no: 74% of people who support marriage equality said they will definitely vote compared with 58% of people opposed.
More on those survey results here:
Updated
You can’t second-guess immutability
I promised a bit more background on that 2013 marriage equality ruling, which found that the Australian parliament is able to legislate same-sex marriage by a simple act of parliament.
The ruling was contained within the Commonwealth v Australian Capital Territory a judgment striking down the ACT’s Marriage Equality (Same-Sex) Act 2013, which created a separate state-based law for same-sex marriages to fill the gap in the federal Marriage Act 1961, which has, since 2004, defined marriage as “between a man and a woman to the exclusion of all others”.
The Abbott government challenged the legislation and the court ruled that it was inconsistent with the federal legislation, and therefore invalid.
But Australian Marriage Equality joined the case as a friend of the court and also asked for a definitive judgment on whether parliament was able to legislate for marriage equality under the scope of s.51xxi of the constitution, known as the marriage power.
In a unanimous judgment, the full bench of the high court found that the definition of marriage was not fixed in time at the point in which the constitution was written but was rather a “topic of juristic classification”.
... when s 51(xxi) gives the parliament legislative power with respect to “marriage”, it gives legislative power with respect to a status, reflective of a social institution, to which legal consequences attach and from which legal consequences follow.
The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable.
It said that it was not possible in a global context to contain definitions of the social institution of marriage to jurisdictions that only allowed marriage between a man and a woman.
At paragraph 37 to 38:
Other legal systems now provide for marriage between persons of the same sex. This may properly be described as being a recent development of the law of marriage in those jurisdictions. It is not useful or relevant for this court to examine how or why this has happened. What matters is that the juristic concept of marriage (the concept to which s 51(xxi) refers) embraces such unions. They are consensual unions of the kind which has been described. The legal status of marriage, like any legal status, applies to only some persons within a jurisdiction. The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable.
When used in s.51(xxi), “marriage” is a term which includes a marriage between persons of the same sex. (Emphasis mine.)
It’s that immutable argument that came back to bite Foley in her argument, before the lunch break, that the court interpret the Census and Statistics Act 1905 as it existed at 1905, rather than as it exists now.
After all, if the definition of marriage was forever interpreted as it existed at the time the marriage power in the constitution was drafted, marriage equality could not even be under consideration.
Updated
While I have been madly typing and fighting with the internet, my colleague Melissa Davey has been weighing up the success of the case against the postal survey so far.
My non-expert take; none of the HC judges seem impressed with the case being put forward that the same-sex marriage postal vote is unlawful.
— Melissa Davey (@MelissaLDavey) September 5, 2017
The plaintiff’s argument is made slightly more protracted by virtue of splitting the key points between Merkel, acting for Wilkie and co, and Kate Richardson SC, who will speak this afternoon on behalf of Australian Marriage Equality and senator Janet Rice.
Merkel argued the “urgent” side of the test while Richardson will focus on “unforeseen”.
Taken together, those two tests are the biggest arguments against the legality of the funding of the survey, which is the biggest argument against the survey itself. But they’re awkwardly split in the proceedings.
As it is we’re already running over time, which may explain why their honours were rather short with Kathleen Foley as she attempted to explain the statistical argument.
Solicitor general Stephen Donoghue, who is obviously answering both cases simultaneously, will have the advantage of being able to structure his arguments in a more sensible fashion.
Updated
The court has (rather abruptly) adjourned until 2.15pm.
Votes, damn votes and statistics
For the past 20 minutes, Merkel’s junior counsel Kathleen Foley has been arguing that it is inappropriate for the Australian Bureau of Statistics to conduct the postal survey because the information cannot properly be considered statistics.
That’s because it’s only asking one question, being whether the respondent thinks people of the same gender ought to be able to marry in Australia.
If it’s not statistics, then it’s a breach of the Census and Statistics Act 1905, which governs what the ABS can do.
Says Foley:
What this process is directed to is a binary result, a collection of yeses and a collection of nos, rather than a range of information about the views relating to this issue in the Australian electorate.
Their honours are unconvinced.
Justice Patrick Keane says that whether or not it counts as statistics, it’s definitely not a vote.
This process is voluntary … so it’s certainly not like a vote in Australia.
If someone doesn’t want to participate or give a view one way or another they can just throw the thing in the bin.
If it was truly a statistical question, Foley said, the survey would ask a broader range of questions to better understand Australian attitudes to marriage and would not limit its pool to those on the electoral roll.
She also argues that the ABS does not have the power to ask questions of personal opinion, which draws some criticism from chief justice Susan Kiefel who points out the Australian yearbooks from the 1910s, which asked questions as obscure as what kind of cattle should be grown on what pasture.
Says Kiefel:
Opinions were expressed on a whole range of topics because they were trying to determine what Australia was going to look like. Why isn’t that what this is?
Foley replies that these past surveys never asked Australians about their personal opinions... rather opinions on business, agriculture, etc https://t.co/sbiVuJzQuB
— Melissa Davey (@MelissaLDavey) September 5, 2017
Kiefel was not impressed with Foley’s argument that the reading of the Statistics Act should be confined to its construction in 1905, because it’s settled law that the meaning of legislation is not fixed but adapts with society. (That’s how the high court was able to rule in 2013 that the Australian parliament could legislate for marriage equality, more on that soon.)
Updated
Apologies for the slight lag there. On to the arguments about the validity of asking the ABS to conduct this survey.
Bit of a delay in the blog there, sorry about that. pic.twitter.com/ngmd7Fow24
— Calla Wahlquist (@callapilla) September 5, 2017
Circular arguments and conflated meanings
Ron Merkel QC, who has been on his feet for almost two hours now, has now turned his argument to the validity of finance minister Mathias Cormann’s direction of 8 August which ordered the appropriation of $122m to fund the voluntary postal survey.
Again, it’s a matter of urgency. Under section 10 of the Appropriations Act, extra money may be drawn to meet “urgent” and “unforeseen” need.
Merkel said that in the explanatory statement accompanying Cormann’s direction appears to conflate the idea of “urgency” and “need”. He also argued that as the Senate was sitting on the day Cormann made the direction, and indeed is sitting again today, it could more appropriately have been asked to consider a special appropriation bill to fund the survey.
There was no urgent need because the government was quite able to put the appropriation for the survey to the House and to the Senate on those days but it didn’t occur.
Merkel said the argument used by the government, that it had an urgent need to fund the survey because its own policy declared it must have a result in three months, was “clearly a misdirection as to the criteria of urgency and it’s totally circular”.
It is quite clear that the minister must necessarily have misdirected himself as to the meaning of urgency … or failed to have regard to a relevant consideration.
He concluded:
... no minister acting reasonably could have concluded in accordance with the law that there was an urgent need.
Updated
The GetUp marriage equality director, Sally Rugg, has appeared on Sky News outside the hearing. She said the plaintiffs in the case are “quietly confident they can stop the postal plebiscite” but her organisation was gearing up to fight the campaign.
GetUp recently launched a new campaign tool to organise phone banks and coordinate outbound calls, which it hopes will help volunteers reach half a million yes voters and persuade them to return ballots.
Asked if the yes campaign had sent “mixed messages” by asking the high court to strike down the postal survey while asking Australians to participate if it goes ahead, Rugg replied:
To be absolutely clear: GetUp as well as Australian Marriage Equality, and Parents and Friends of Lesbians and Gays ... absolutely oppose a plebiscite in any shape or form. We campaigned against a plebiscite for two years, and now we’re taking it to the high court.
If the government has done its legal homework and has found a way to sneakily circumnavigate parliament and we are forced to have this postal vote we are going to do everything possible to win it. I think people who support marriage equality really understand we’re being forced into this postal vote, it’s not where we want to be but we’re going to win if we have to.
Rugg said that GetUp did not condone a petition for a review into whether to deregister no campaigner, doctor Pansy Lai, and had it taken down from a GetUp hosted website when it received complaints.
Updated
This is Felicity Marlowe, the plaintiff who Merkel argued had a “very special interest” in the case, given the “unique” situation of the proposed voluntary postal survey inviting all enrolled Australians to offer their opinion on the validity of her family unit.
Updated
Is it really urgent, though?
Now to the question of urgency. As discussed (at some length, I’m so sorry) in earlier posts, section 10 of the Appropriations Act allows the finance minster to draw non-budgeted funds in “urgent” and “unforeseen” circumstances.
“Urgent” means the government can’t “practically await” the budget process to approve the expenditure.
This case is the “perfect example to test the ambit of the power”, Merkel says, because the only urgency appeared to be a policy decision taken by government, and a deadline of 15 November, which was also set entirely by the government.
You will look in vain for any circumstance that explains urgency outside of the government policy implementation. A date of 15 November is preferred but no reason is made for why that date should not be a month earlier or a month later.
The whole urgency argument, Merkel says, is therefore based on an apparent need to implement this specific iteration of a government policy, being the involvement of the ABS on a postal survey on marriage equality, within three months.
Updated
A summary from Merkel:
The ultimate questions when one looks at the practical effect … there is a delegation of the power to declare an appropriation to the finance minister and the question for this court is, is that constitutional?
Now we get to the question of whether the need for the funding was urgent or unforeseen.
Updated
This line of Merkel’s argument goes to alleged flaws in the construction of the Appropriations Act itself, and the statutory scheme of appropriations as in has existed since 1999.
He’s arguing against standing appropriations:
Section 6, 10, and 12 operate as a standing appropriation, and the one thing our history tells us is standing appropriations have not been considered as able to be incorporated into the annual budget cycle.
That’s a problem for their honours, who do not appear convinced by the argument that standing appropriations are an “exception”.
Quipped justice Patrick Keane:
The exception that covers about 85% of commonwealth expenditure.
Merkel says the way the commonwealth is applying section 10 of the Appropriation Act allows the government a basically unchecked ability to appropriate funds without the approval of parliament, in such a way that removes the need for special appropriations.
Special appropriations are acts of parliament to allow the funding of “urgent” policy, as was used to fund the Northern Territory intervention.
He says it does not matter that the quantum of those appropriations is capped at $295m.
... constitutional validity cannot depend on an amount.
Updated
Ron Merkel is now arguing that the government has misinterpreted the Appropriation Act. He has argued that there must be an “urgent need” for extra expenditure and has not satisfied that requirement.
He also argues the commonwealth, in its submissions in the case, is considering the case too narrowly by “retreat(ing) into section 12 as the sole and operative provision.”
Here’s the section in question:
12 Appropriation of the Consolidated Revenue Fund
The Consolidated Revenue Fund is appropriated as necessary for the purposes of this Act, including the operation of this Act as affected by the Public Governance, Performance and Accountability Act 2013.
Merkel argues that the government’s submissions have the “startling result that the advance to the finance minister … can change any outcome and increase the amount of funding to that outcome or can add a new item or a new outcome across the whole spectrum of government.”
We say that the consequence of this statutory scheme is the parliament has impermissibly conferred power on the minister ... to amend the Act to appropriate money … for an outcome that the legislature has not considered or provided for.
Updated
"We'll demonstrate how unique and offensive it is that a personal opinion is being asked on a relationship of this kind," - Merkel. #SSM
— Shannon Deery (@s_deery) September 5, 2017
‘This is unique’
Ron Merkel now moves on to arguing that his second plaintiff, Felicity Marlowe, has standing to appear before the court on this matter.
Merkel says Marlowe has a “very special interest” by virtue of the public being asked to provide an opinion on “her family unit.”
It is:
... a vote by the electorate on her suitability to be in a family relationship ... with every elector being given the opportunity to voice their opinion on her family ... we say is a matter that gives her a very special interest.
Their honours ask if it is not just an “emotional concern.” Merkel says it certainly does cause emotional distress, but it is deeper than that:
This is not just an emotional concern. Her concern is put at the objective level of out there in the public domain the Australian electors are being asked to have an opinion on the suitability of her and her partner and their children as a family ... It’s putting into the public domain for an public vote on her family unit.
There are no perfect precedents for the level of Marlowe’s interest, Merkel says.
This is unique.
Updated
Merkel has argued, on the question of standing, that Wilkie has standing to appear before the high court because by granting the funding in this manner Wilkie, as a federal MP, has been denied his constitutional right to amend the law.
The justices are taking some convincing that Wilkie has any special right, or has been specially aggrieved, by virtue of his job. They are less impressed by Merkel’s second argument, that Wilkie has an interest by virtue of being an elector.
Said justice Virginia Bell:
This is a special interest that he shares with 16 million other Australians.
The court will hear the arguments from the plaintiffs today, while the government will respond tomorrow.
Ron Merkel QC, counsel for Wilkie and Co., kicks things off. He says they are seeking the court answer five questions:
- That the plaintiffs have standing to appear before the court;
- Whether section 10 of the Appropriations Act 2017-2018 is a valid law;
- Whether Mathias Cormann’s direction for an additional $122m to fund the survey was authorised under s.10;
- Whether treasurer Scott Morrison’s direction that the Australian statistician carry out the survey was valid;
- And what relief should be granted to the plaintiffs if the court finds in its favour on any of those questions.
Merkel argues that the money should not have been available in the first place, and that the funding itself “is a necessary but not sufficient requirement for the Australian statistician to conduct the survey.” The result, in either case, ought to be that the ABS cannot conduct the postal survey, Merkel says.
The hearing has begun. That’s all seven high court judges sitting in a row, with chief justice Susan Kiefel in the middle.
And we're off. pic.twitter.com/LUSXSWdF1N
— Calla Wahlquist (@callapilla) September 5, 2017
Key facts: what is the court actually looking at?
Before the hearing gets underway at 10.15am, let’s have a quick run-through of the assumed knowledge in the case.
The facts agreed by all parties are that the finance minister Mathias Cormann, who is the the lead defendant in the case brought by Australian Marriage Equality and the second defendant in the case bought by Andrew Wilkie, made a number of public statements about the government’s intention to hold a plebiscite before the postal survey was formally put in motion on 7 August this year.
Three of those interviews principally concerned the government’s first Plebiscite (Same-Sex Marriage) Bill 2016, which was introduced to the lower house on 14 September, 2016, and defeated in the senate on 7 November, 2016. That bill was to establish a formal plebiscite on 11 February, 2017.
In March 2017, the department of finance sought advice from the attorney general’s department on preparing a submission to cabinet, which the parties have agreed was not in relation to a proposed postal survey or the involvement of the ABS in a marriage equality plebiscite.
On 20 March, the assistant secretary of the finance department, Kerry Markouli, sent an email to the first assistant secretary of the AG’s department, Tamsyn Harvey, with an attachment titled “Memorandum of Understanding to Fund plebiscite.” That date is included in the publicly available plaintiff’s chronology.
That advice and associated other emails were sought in a freedom of information request by Crikey journalist Josh Taylor (who has since moved to Buzzfeed), but the release of emails relating to cabinet advice was blocked. Taylor’s FOI request forms part of the agreed facts.
All parties agree that 5 May was the last day on which additions could be made to the Appropriations Bill (No.1) 2017-2018, which was finalised and printed before the budget was handed down on 9 May.
That Act, which authorises the government to draw money to enact its policies as stated in the Act, commenced operation on 1 July.
On 8 August, Cormann published a media release entitled “Commitment to A National Plebiscite on Same Sex Marriage.”
It said:
Our preference is to deliver on that commitment through a compulsory attendance plebiscite as per the Plebiscite (Same-Sex Marriage) Bill 2016 (the Plebiscite Bill) and for such a plebiscite to take place on 25 November 2017.
…. If the Senate again fails to pass this Bill for a compulsory attendance plebiscite, the Government will proceed with a voluntary postal plebiscite for all Australians enrolled on the Commonwealth Electoral Roll with final results known no later than 15 November 2017.
The government reintroduced the plebiscite bill to the senate and it failed again.
On 9 August, Cormann issued a determination under the Appropriations Act, known as Advance to the Finance Minister Determination (No. 1 of 2017‑2018).
It set out that under section 10 of the Appropriations Act, the finance minister is able to issue amounts of up to $295m, provided that:
... he is satisfied that there is an urgent need for expenditure in the current year that is not provided for, or is insufficiently provided for, in Schedule 1 of the Act because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives.
In this case, the determination said, the unforeseen circumstance was the senate refusing to pass the plebiscite bill, which necessitated urgent funding to the ABS to undertake a voluntary postal plebiscite. The amount authorised was $122m.
On 9 August the treasurer, Scott Morrison, directed the Australian Statistician to conduct the survey. In a media release of the same day, Cormann explained that the ABS would send a postal vote to everyone enrolled on the electoral roll, with letters to be sent by 12 September and returned by 7 November.
The twin challenges from Australian Marriage Equality and others, and Wilkie and others, were also lodged with the high court on 9 August.
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The queue is building outside the commonwealth law courts building. The high court has opened two rooms, a main courtroom on level 17 and an overflow room on level 8, to accommodate all the public interest.
Half an hour queue to get into the High Court today, hundreds here for #SSM postal survey challenge.
— Shannon Deery (@s_deery) September 4, 2017
If you've just come up the stairs at Flagstaff, congrats, you're now in the High Court queue. #SSM
— Shannon Deery (@s_deery) September 4, 2017
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Word from the legal eagles:
The Applicants only need to succeed on one of their three arguments for the postal vote not to go ahead. https://t.co/4RvSd5YYqp
— Greg McIntyre SC (@McIntyreGregory) September 4, 2017
Greg McIntyre is commenting on an opinion piece in the Fairfax press from constitutional lawyer George Williams, who describes the proposed postal survey as a “radical option” and runs through the history of the high court expecting parliamentary approval of expenditure.
Williams writes:
It is surprising that matters have come to this. The normal path of making law about marriage is a simple vote of parliament. Instead, conservatives have promoted a more radical option that clashes with Australia’s traditions of parliamentary democracy. The non-binding, non-compulsory process run by the Australian Bureau of Statistics is unique in Australian history.
The vote is also constitutionally adventurous because it has twice been rejected by parliament. This leaves the government open to the attack that it lacks the legal authority to conduct the survey. Nothing in the submissions put by the commonwealth to the high court alters my view that the survey will more likely than not be struck down.
Over recent decisions the high court has found that the federal government generally requires parliamentary approval to spend taxpayers’ money. The court applied this reasoning to strike down the hundreds of millions of dollars being spent on the National Schools Chaplaincy Program. The challengers are arguing that the postal survey should be terminated on the same basis.
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Jonathan Hunyor said the postal survey was “unnecessary, divisive, and (dealt with) something that we expect parliament to be able to decide in the ordinary course of things.”
He continued:
We also have serious concerns about undermining the integrity of institutions like theAustralian Electoral Commission and the Australian Bureau of Statistics in a process that is neither about statistics, nor it about an election.
Felicity Marlowe, the second plaintiff in the Wilkie case, spoke about the impact the ‘no’ campaign on marriage equality had on her family and her three children, which she has with Sarah, her partner of 17 years.
...in just the four short weeks since the postal plebiscite was announced, families like mine and trans-and diversity young people have already, without campaign being started, have been subjected to vile hate and abuse.
I am deeply concerned about the long-term impact that any eight-week campaign on a postal plebiscite and the mental impact on the health and wellbeing of children like mine and trans-and diverse young people. Our much loved children have already been termed and described as the new stolen generation ... LGBTI parents like myself and Sarah have been called unworthy, unnatural, we’ve had our ability to parent properly questioned, our ability to nurture and love and care for our children questioned already on social media,on posters, on flyers, on advertisements in the newspapers....
"I am so worried that children like mine will become collateral damage in the govs failure to pass marriage equality" Felicity Marlowe pic.twitter.com/Qx1nsfkk20
— Sally Rugg 🏳️🌈 (@sallyrugg) September 4, 2017
I don’t want my children to hear that I didn’t work hard to stop this postal plebiscite from going ahead. It was not an easy decision to decide to subject my family, my partner Sarah, my three kids to this kind of government and political and public scrutiny, but I’m doing it because I want to be able to say to them that we did everything we could, and the last thing we could do was take this government to the high court to stop the postal plebiscite.
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The Human Rights Law Centre’s Anna Brown, who is acting for Australian Marriage Equality and senator Janet Rice, is holding a press conference outside the commonwealth law courts in Melbourne, along with Jonathan Hunyor, chief executive of the Public Interest Advocacy Centre which is running the case for Wilkie et al.
#MarriageEquality Press conference kicking off - tune in on our Facebook page https://t.co/ATtMLsB6hy pic.twitter.com/fTwjGNfIOs
— Tom Clarke (@TomHRLC) September 4, 2017
Brown says the HRLC will be arguing:
...that the government does not have authority to spend funds on this postal plebiscite.
She continues:
We will also be arguing that the expenditure isn’t unforeseen and isn’t part of the ordinary services of government.
These are important issues and principles of government accountability and the rule of law,but above all, this case is about the dignity and equality for lesbian, gay, by sexual, transgender and intersex Australians.
The Australian parliament should resolve this issue. Ultimately whether or not we have the postal plebiscite, the parliament has to vote on this issue in order to legislate for marriage equality. It needs to do its job. The parliament should move forward and vote on this reform so we can celebrate the achievement of marriage equality and the values of fairness, equality, dignity and respect.
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A special case
The high court is not remotely interested in determining questions of fact, merely questions of law, so the parties have agreed on a set of facts and the questions of law at issue in the case ... namely, whether the cost of the postal survey can be deemed “unexpected” and “unforeseen” within the context of the Appropriations Act 2017-2018.
That agreed premise is known as a special case. It’s a document prepared by the plaintiff and then signed by all parties.
It will be referred to continuously throughout the hearing and is referenced in the statements of claim filed by both parties, but unlike the statements of claim is not publicly available on the high court’s website.
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Before we get bogged down in the law, let’s wind the clock back five years to an auditorium at Southern Cross University in the first week of July, 2012, where the then shadow communications minister, Malcolm Turnbull, delivered a stirring speech in favour of marriage equality for the Michael Kirby lecture.
At the height of his leather jacket era, the now prime minister laid out the most common arguments by opponents of marriage equality and knocked them down, concluding:
If we had a free vote on the matter and, subject always to the wording of the Bill, I would vote to recognise same sex couples’ unions as a marriage. For reasons I have laid out I find the arguments against it unpersuasive.
In 2012, the Liberal party did not hold a free vote because it’s policy was to oppose marriage equality. In his two years as prime minister, Turnbull has not granted a free vote because the party’s policy since 2015 has been to support a plebiscite, now the postal survey, and legislate after the results are in.
Of course, if the postal survey is knocked down in the high court, a free vote might be back on.
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It begins - same sex marriage case in the High Court to decide the legality of postal survey expected to take full two days. 10.15am start. pic.twitter.com/lsqtjFubMn
— Melissa Davey (@MelissaLDavey) September 4, 2017
‘Urgent’ and ‘unforeseen’
The crux of the case is whether the finance minister, Mathias Cormann, is authorised to approve the $122m cost of the postal survey despite despite it not receiving the assent of parliament.
The money was authorised under section 10 of the Appropriation Act (no.1) 2017-2018, which provides that the finance minister may authorise extra funds if he is satisfied that there is an “urgent need” for expenditure in the current year, which was not provided for either because of “an erroneous omission or understatement,” or because it was “unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives.”
In his directive authorising access to the $122m, Cormann said it was authorised under section 10 by way of being “urgent and unforeseen.”
The plaintiffs argue that’s not the case.
The case put by Wilkie et al, by Ron Merkel QC, will focus on the question or urgency. The case put by Australian Marriage Equality and senator Janet Rice, by Kate Richardson SC, focused on the question of it being unforeseen.
Both argue that statements and actions of government ministers in the 12 months leading up to the announcement of the postal survey belie the argument that it was “unforeseen” and question its “urgency,” when the government had nine months between the first failure of the plebiscite bill in the senate and the second, “urgent” attempt.
The commonwealth will argue that the court has a “limited role” in appropriations, arguing that it is of a fiscal rather than regulatory character and financial matters “are not matters that lend themselves to the supervision of the courts.”
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Questions of marriage, questions of law
The high court will sit in Melbourne today to determine whether the Turnbull government erred in law by authorising a $122m payment to the Australian Bureau of Statistics for the purpose of conducting a voluntary postal survey on marriage equality.
The hearing will run for two days and is a combination of two related cases. The first is brought by independent MP Andrew Wilkie, LGBT+ advocate Felicity Marlowe, and PFLAG Brisbane against the commonwealth, finance minister Mathias Cormann, treasurer Scott Morrison, the Australian statistician, and the electoral commissioner.
The second is brought by Australian Marriage Equality and Greens senator for Victoria Janet Rice against Cormann and the Australian Statistician.
Both argue that the postal survey is unlawful because the Cormann did not satisfy the requirements under the Appropriations Act, an annual piece of legislation that authorises the executive government’s access to money, to secure the release of the funds.
The case begins at 10.15am. I’ll get into the nitty gritty of the law in a minute but for now, here’s a very comprehensive explainer by Paul Karp.
My colleague Melissa Davey and I will be at the high court in Melbourne today following the case. You can follow her on twitter at @MelissaLDavey and me at @callapilla
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