High Court Ruling on the Constitutional Challenge to the Marriage Equality Survey
Friday 29 September 2017 @ 11.10 a.m. | Judiciary, Legal Profession & Procedure | Legal Research
On Thursday the 29th of September 2017, the High Court published its reasons for the case: Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40 (the “case”). Decided by the Full Court of the High Court of Australia, this judgment is the latest decision to be released in a series of legal challenges that have been brought in the lead up to the Marriage Equality Survey, which is being conducted Australia wide by the Australian Bureau of Statistics (ABS) this and next month.
The Law
The current Commonwealth law regarding marriage is the Marriage Act 1961 (Cth) (“the Marriage Act”). Under the Marriage Act, “marriage” is defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, as per section 3 and schedule 1, item 1 of the Marriage Amendment Act 2004 (Cth). While this legislated definition of marriage was enacted under s 51(xxi) of the Constitution, the High Court has previously held, in The Commonwealth v Australian Capital Territory, that s 51(xxi) is capable of supporting a national law which defines marriage as including the union of two persons of the same sex.
On the 13th of September 2016, the Government announced through the Attorney-General and the Special Minister of State, that they intended to conduct a compulsory plebiscite through the Australian Electoral Commission (AEC) which would ask electors whether the law should be changed to allow same-sex couples to marry. However, while these measures were presented to the Parliament in the form of the Plebiscite (Same-Sex Marriage) Bill 2016, this Bill was defeated in the Senate on the 7th of November 2016.
The Government then decided to conduct a “voluntary postal plebiscite for all Australians enrolled on the Commonwealth Electoral Roll with final results known no later than 15 November 2017”, conducted by the ABS.
The Proceedings
The judgment for this case is made in relation to two proceedings which commenced in the High Court on the 10th of August 2017. These proceedings were a challenge to the lawfulness of the measures being taken by the Australian Government to conduct the Marriage Equality Postal Survey; with the purpose of this survey being to obtain the views of Australian electors in relation to the question of whether the law should be changed to allow same-sex couples to marry.
The plaintiffs in the first proceeding, Wilkie & Ors v The Commonwealth, sought to gain an injunction against the defendants on the grounds that:
- Section 10 of the Appropriation Act No 1 2017-2018 (“Appropriation Act”) is invalid – this section allowing the Finance Minister to “make provision for so much (if any) of the expenditure as the Finance Minister determines” – or alternatively that s 10 did not authorise the Finance Determination;
- The s 9(1)(b) of the Statistics Act did not authorise the Statistics Direction.
The second proceeding (“the AME proceeding”) sought an injunction on the ground that s 10 of the Appropriation Act did not authorise the Finance Determination.
The Result
The Judgment, delivered on the 7th of September 2017, held that the Australian Marriage Law Survey was valid, dismissing one proceeding and giving reasons against the grounds of the other.
With regard to the question of the validity of s 10 of the Appropriation Act, the court held that this section is constitutionally valid as determined by s 81-83 of the Commonwealth Constitution. This determination was established by a comparison of preceding Appropriation Acts and through the statutory interpretation of the section as a part of the Act. As stated on page 31 of the judgment:
“To appropriate by s 12 of Appropriation Act No 1 2017-2018 the amount specified in s 10(3) to be applied, relevantly under s 7, in accordance with a direction under s 10(2) if the precondition in s 10(1) is met is to appropriate that amount for a purpose which Parliament has lawfully determined may be carried out.”
Additional determinations that the High Court made in relation to s 10 of the Appropriation Act were in relation to the interpretation of the Act, in particular, what is required for the Finance Minister to be satisfied that an exercise of power is necessary as per s 10(1) . As stated on page 37-40 of the judgment:
“First, the Finance Minister must be satisfied that there is a need for expenditure, in the current fiscal year, that is not provided for, or is insufficiently provided for, in Sched 1 to Appropriation Act No 1 2017-2018. The notion of expenditure is that given by the statutory definition of that term as meaning payments for expenses, acquiring assets, making loans or paying liabilities. The notion of need does not require that the expenditure be critical or imperative. To set the bar that high would tend to render the other considerations of which the Finance Minister must be satisfied contradictory, not complementary. The notion of need must rather be of expenditure which ought to occur, whether for legal or practical or other reasons.
[…]
Next, the Finance Minister must be satisfied that the need for the expenditure is urgent. Urgency, of course, is a relative concept. The concept here is of urgency in the context of the ordinary sequence of annual Appropriation Acts. The question for the Finance Minister to weigh is why the expenditure that is needed in the current fiscal year and that is not provided for, or is insufficiently provided for, in the relevant Schedule to Appropriation Act No 1 cannot await inclusion in Appropriation Act No 3, or (if the time for inclusion of the expenditure within Appropriation Act No 3 has already passed) why it might not be included in an Appropriation Act No 5.
[…]
Finally, the Finance Minister must be satisfied that the additional expenditure in the current fiscal year is not provided for, or is insufficiently provided for, in Sched 1 because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for Appropriation Act No 1 2017-2018.
The question for the Finance Minister at that final stage of inquiry concerns the expenditure that the Finance Minister is satisfied is needed; that is to say, the actual payments that are to be made. The question is: was that expenditure unforeseen by the Executive Government? The question is not whether some other expenditure directed to achieving the same or a similar result might have been foreseen by the Executive Government. Nor is it whether the actual payments to be made might have been foreseen other than by the Executive Government.”
With regards to the Statistics Direction, the High Court determined that it was valid: “The only legally relevant question is whether the Statistics Direction directed the collection of "statistical information". What it directed might well also be described as a "vote" or a "plebiscite". That, or any other, alternative characterisation is irrelevant to its validity” (p 46).
“Against the background of the principle of construction, articulated in the year of enactment of the Statistics Act, that statutory language is not lightly to be treated as "superfluous, void or insignificant"[1], the original and continuing existence within the Statistics Act of a statutory exclusion for collection under compulsion of information about religious belief can indeed be treated as an exception which proves a rule. The rule which the exception proves is that information about personal opinion or belief, including information as to the proportion of persons holding a particular opinion or belief, is and always has been "statistical information".
The argument that information about views on whether the law should be changed to allow same-sex couples to marry was not "in relation to" any of the matters prescribed in the items in the table in s 13 of the Statistics Regulation specified in the Statistics Direction was equally untenable. The context of the Statistics Act provides no justification for reading "in relation to" as requiring anything more than the existence of a relationship, whether direct or indirect, between the information to be collected and the subject-matter prescribed[2]. The information to be collected was plainly "in relation to" each of the subject-matters referred to in the items in the table in s 13 of the Statistics Regulation as "marriages", "Law" and "the social … characteristics of the population".”
The determination of these cases was that the plaintiffs’ claims were dismissed with costs.
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Sources:
Appropriation Act No 1 2017-2018, as published on Timebase LawOne.
Census and Statistics Act 1905, as published on Timebase LawOne.
Commonwealth of Australia Constitution Act 1901, as published on Timebase LawOne.
Marriage Act 1961, as published on Timebase LawOne.
Marriage Amendment Act 2004, as published on Timebase LawOne.
Plebiscite (Same-Sex Marriage) Bill 2016, as published on Timebase LawOne.
The Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55
The Commonwealth v Baume (1905) 2 CLR 405 at 414; [1905] HCA 11, quoted in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]; [1998] HCA 28.
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374, 376; [1990] HCA 16.
