The high court will deliver its decision on whether the government’s same-sex marriage postal vote is lawful on Thursday afternoon.
While high court decisions can take weeks, the decision has been expedited, with the Australian Bureau of Statistics due to start sending postal votes to 16 million Australian by 12 September.
Wednesday marked the final day of the two-day hearing challenging the validity of the federal government’s intended postal vote on same-sex marriage. The solicitor general, Stephen Donaghue, acting for the government, told the court that private citizens in same-sex relationships “have no right to challenge” the government’s allocation of funding for the postal survey.
Donaghue was responding to the case put forward against the postal vote by Ron Merkel QC, who is representing Melbourne lesbian mother Felicity Marlowe. Merkel told the court that it was “unique and offensive” that the public could vote on Marlowe’s family unit, and that was why she had taken the government to court.
But Donaghue told the court the survey “in no way” cast aspersions on Marlowe’s relationship or that of other same-sex couples. Rather it was the Marriage Act as it currently stood, along with third parties engaged in an anti same-sex marriage campaign, that called the validity of LGBTI relationships into question, he said.
“[The postal vote] will ask electors who receive it whether the law should be changed to allow same-sex couples to marry,” he told the high court in Melbourne, led by chief justice Susan Kiefel. “A consequence of the existing law imposes a distinction on same-sex couples and other couples. Asking whether the distinction should be removed doesn’t cast the aspersion being suggested.”
Justice Geoffrey Nettle put it to Donaghue that LGBTI people might be “so offended by receipt of the [postal vote] document by reason that it occurs to them others are being able to pass judgment on their sexuality”.
Donaghue insisted the postal vote did no such thing.
On Tuesday, the court heard from lawyers representing the two challenges to the survey. The two challenges, being heard together, argue the government acted inappropriately in allocating $122m to the Australian Bureau of Statistics to conduct the vote; that the question of same-sex marriage is not within the scope of statistics collected by the bureau; and that it was wrong to ask people to sign up to the electoral roll for the vote because the issue could not be considered an electoral matter.
Merkel told the court that the law made it clear that funding such as that allocated to the postal vote could only be allocated in “urgent and unforeseen” circumstances. But the postal survey was neither urgent nor unforeseen, Merkel and senior counsel Kate Richardson told the court.
But Donaghue put it to the court that natural disasters and military interventions should not be the only matters that met the “urgent” criteria. Government policy could also be considered a matter of urgency, he said. While opponents to the postal vote have argued that the fact that parliament could pass same-sex marriage without the need for an expensive postal survey removed the urgency, Donaghue said the relevant legislation did not expressly state “if it is possible to return to parliament one must do so”. The act should have been written more clearly if that was what it meant, he added.
He then cited cases where urgent funding had been made available by the government, after not being accounted for in the budget, for infrastructure such as arts centres and sports stadiums. If those kinds of comparatively small projects were considered urgent, then a $122m postal-survey on same-sex marriage must be considered urgent as well, Donaghue said.
The lawyers wrapped up their argument on Tuesday afternoon. Dozens of people attended the case over the past two days, with an “overflow” room required to accommodate them.
Last week the prime minister, Malcolm Turnbull, refused to say what the government would do if the high court struck down the postal plebiscite because he was “confident the challenge to the postal vote on marriage … will not be successful”.
