Same-Sex Marriage Plebiscite: High Court Dismisses Constitutional Challenge

The High Court has dismissed the constitutional challenge to the same-sex marriage plebiscite yesterday (7 September 2017), confirming that the plebiscite is valid. The High Court has stated that it will be publishing reasons on a subsequent date. This plebiscite is the most recent in a line of attempts to legalise same-sex marriage.

Parties to the Case

In Matter No M105 of 2017, the group of plaintiffs were the Tasmanian independent MP Andrew Wilkie, Felicity Marlowe, a woman in a long-term same-sex partnership, and PFLAG (Parents, Family and Friends of Lesbians and Gays).

The second group of plaintiffs in Matter No M106 of 2017 consisted of Australian Marriage Equality Ltd., and Greens Senator Janet Rice. The defendants were the Minister for Finance, and the Australian Statistician.

Issues

The first major issue to be decided was the question of standing, and the High Court dismissed this matter, potentially because it would open up other major legal issues. The plaintiffs, especially Marlowe, argued that she had standing because of the distress the survey would cause her and her family. However the court avoided answering the issue of standing, by coming to a conclusion that the challenge would have failed.

The second issue considered was the matter of appropriation. The court had to consider whether the Advance to the Finance Minister Determination (No 1 of 2017-2018) (Cth) was valid. This was a matter to be determined under Section 83 of the Constitution, which stipulates that money cannot be drawn from the Treasury, unless it is done under appropriation by law. In order to pay for the plebiscite the government has drawn on a contingency fund. In order to legitimately do so, the expenditure must have been unforeseen and the finance minister needs to be satisfied that there is an urgent need for expenditure. The Government argued that it was for the minister to determine whether the expenditures were urgent, and furthermore the urgency could be created by changes in policy. They also argued that while the policy of a plebiscite was longstanding, the conducting of a postal survey by the ABS was unforeseen.

The third main issue was whether it was valid for the Australian Bureau of Statistics (ABS) to be conducting the plebiscite. This raised logistical questions related to the capacity of the ABS to conduct such a large scale survey. The second question is the matter that under the Census and Statistics Act 1905 (Cth), the ABS can only collect statistical information that is prescribed by regulation. This was a matter of determining what was meant by the term ‘statistical information’ in the Act.

Plebiscite Next Steps

Voters will be receiving ballot papers from 12 September 2017 asking them whether the law should be changed to allow same-sex couples to marry. Therefore the High Court can be expected to be publishing its reasons soon.

The deadline for the return of forms is 7 November 2017, and the result will be released on 15 November 2017.

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Wilkie & Ors v. The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v. Minister for Finance Mathias Cormann & Anor [2017] HCATrans 176, transcript.

Gabrielle Appleby, 'High Court dismisses challenge, so Australia is off to the (postal) polls onsame-sex marriage,' (The Conversation) 7 September 2017.