Opposing the harmful postal survey on marriage equality

We challenged the Commonwealth’s postal survey on Australian marriage laws in the High Court, testing the limits of executive power.

In August 2017, the Commonwealth Government announced it would hold a voluntary postal survey to ask Australians if the law should be changed to allow same-sex couples to marry. The decision was controversial. The Senate had rejected Government legislation for a compulsory plebiscite on the question, but the postal survey could go ahead without review by the Parliament.

It was the first time in Australia’s history that an issue of human rights was to be decided by popular survey. LGTBIQ+ community members and allies raised concerns about the impacts of a divisive public campaign.

In September, the JEC (then PIAC) went to the High Court to challenge the legality of the postal survey.

The JEC brought a case (the Wilkie case) on behalf of Andrew Wilkie, the Independent MP for Denison; Felicity Marlowe, a Melbourne mother in a same-sex relationship, and advocate for Rainbow Families; and PFLAG Brisbane (‘Parents and Friends of Lesbians and Gays’), with their national spokesperson Shelley Argent.

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

The two cases were heard at the same time and raised issues about the exercise of power and government accountability.

Our argument was based on the Government’s decision to bypass the Parliament to fund the costly survey.

Under the Constitution, the Australian Parliament must approve Commonwealth spending through an ‘appropriation’. But the Government instead used an ‘Advance to the Finance Minister’ (AFM), a mechanism that allows the Finance Minister to independently allocate funding in ‘urgent’ and ‘unforeseen’ circumstances. This undermined Parliament’s role and weakened the checks and balances essential for a healthy democracy.

In the High Court, we argued the AFM was unconstitutional and therefore lacked authority, as it contradicted the general rule that Parliament must approve government spending. We also argued that even if the AFM was valid, the Finance Minister did not validly use the power as the postal survey was neither ‘urgent’ nor ‘unforeseen’ – both same-sex marriage and a postal vote had been extensively discussed prior, and the issue could be decided by a vote of Parliament.

The plaintiffs in the AME case additionally argued that the AFM was limited to spending for the ‘ordinary annual business of government’, which the postal survey did not fall under.

The High Court ultimately found that the Government’s decision to hold and fund the postal vote on same-sex marriage was lawful. The Court said the question of what is ’urgent’ and ’unforeseen’ was a subjective matter for the Finance Minister, provided the Minister’s satisfaction was formed reasonably and on a correct understanding of the law. The Court found that here, the Minister’s satisfaction met these requirements. You can read the full judgment at the High Court website. Speaking at the time, Jonathon Hunyor, JEC CEO said:

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

‘These cases raised important issues about the way that power is exercised by government and the role of Parliament in our democracy.’

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

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

The JEC was represented by Ronald Merkel QC, Kathleen Foley, Christopher Tran and Simona Gorey, all acting pro bono.

Read the case explainer.