The argument that could bring down same sex marriage postal survey

POSTAL surveys on same sex marriage are due to be sent out next week but some believe the Turnbull Government plan is doomed.

The High Court will consider whether the same sex marriage postal survey is legal.

THE Turnbull Government’s same sex marriage postal survey will be put to the test this week with the High Court due to consider if the vote is lawful.

The government is facing challenges from two sets of groups and the cases will be heard in court today and tomorrow.

The High Court could deliver a verdict as early as Wednesday but may need longer to consider its decision, potentially disrupting plans for the survey to be sent out starting on September 12.

Shadow attorney-general Mark Dreyfus believes there is a 50/50 chance the High Court will allow the survey to go ahead, while constitutional expert George Williams told the National Press Club last week the government was facing “an uphill battle”.

So who will win? Here are the arguments that could decide the issue.

FIGHTING BATTLES ON BOTH SIDES

Two groups have filed court challenges.

The Human Rights Law Centre, representing Australian Marriage Equality and Greens Senator Janet Rice has brought forward one case.

The other case is being fought by the Public Interest Advocacy Centre, representing Andrew Wilkie MP, Felicity Marlowe and FPLAG Brisbane Inc.

KNOCKOUT BLOW?

It costs money to survey 16 million Australians on what they think about same sex marriage and how the Turnbull Government plans to get this money is one of the main arguments against its plans for a postal survey.

The Public Interest Advocacy Centre will argue Finance Minister Mathias Cormann is not allowed the use his powers to fund the survey, which is expected to cost $122 million.

Each year the minister is given a pool of money to use for “urgent” or “unforeseen” expenses. This year that fund added up to a cool $295 million. The money is provided through the Appropriation Act.

PIAC chief executive officer Jonathan Hunyor said it would argue the fund itself is unconstitutional because it allows the government to get around rules that suggest the entire parliament is responsible for spending decisions.

Even if the power is valid, just because the government has decided on a timetable it wants to resolve the issue of same sex marriage, doesn’t mean this fits into the meaning of “urgent”.

“There’s nothing urgent about having a postal vote on same sex marriage,” Mr Hunyor told Lateline.

“An urgency should mean where there’s a natural disaster, or something needs to happen immediately,” he said.

The government has suggested the funding was urgent because “we want the result by the 15th of November ... which wasn’t foreseen at the time the budget was put together”, the Finance Minister told Sky News.

But constitutional expert George Williams also believes the government will have difficulty arguing its case.

Entering the ring. (From left to right): Australian Marriage Equality co-chair Alex Greenwich, Human Rights Law Centre director of legal advocacy Anna Brown, Public Interest Advocacy Centre chief executive officer Jonathon Hunyor and Director of Rainbow Families Victoria Felicity Marlowe address the media outside the High Court in Melbourne today. Picture: James Ross/AAP

“How could this expenditure be said to be unforeseen at the relevant date of May 5, 2017, when the government had a longstanding policy of holding a plebiscite on same-sex marriage?” Prof Williams told the National Press Club.

“Overall, I would be surprised to see the government emerge with a victory.”

He said a series of High Court decisions had found the government generally needed parliamentary approval to spend taxpayers’ money.

Mr Hunyor gave the example of school-based chaplains, which the High Court found was unlawful because funding wasn’t approved by parliament.

The Human Rights Law Centre will also question funding through the Appropriation Act, saying it was limited to the “ordinary business of government”.

It will argue the survey isn’t “ordinary business” and is an expensive, complicated and extraordinary process.

Other issues the Public Interest Advocacy Centre will bring up include the legality of involving the Australian Bureau of Statistics and the Australian Electoral Commission in conducting the survey.

“The electoral commission’s powers are limited to electoral matters so we say this falls beyond that,” Mr Hunyor said.

“To a large extent it’s uncharted waters,” he said of the legal actions.

HOW WILL THE GOVERNMENT DEFEND ITSELF?

The government is expected to challenge whether the groups have the right to bring the legal action in the first place.

The groups will have to show whether they’ve got “standing”, which comes from having a special interest in the proceedings.

Mr Hunyor said he thought his clients did have a special interest.

MP Andrew Wilkie is a parliamentarian with an interest in ensuring government processes aren’t subverted, while Felicity Marlowe is in a same sex relationship with kids who is feeling the brunt of homophobic comments associated with debate over the survey. FPLAG Brisbane Inc represents the parents and friends of the gay and lesbian community.

WHEN WILL WE GET A VERDICT?

A full court of not less than two Justices will consider the arguments on Tuesday and Wednesday. It doesn’t have to be an unanimous decision but a majority of judges must agree.

It’s not clear when the court will deliver its decision but it could be as early as Wednesday afternoon.

There is some urgency as the Turnbull Government wants to start sending our surveys on Tuesday next week (September 12).

WHAT HAPPENS IF THE GOVERNMENT LOSES?

The postal survey was already considered “Plan B” when it comes to resolving the same sex marriage issue, after its initial proposal for a binding plebiscite was knocked back in parliament.

If the survey is found to be unconstitutional, the prime minister will face a choice of trying to fix the problem with legislation and going ahead with the survey; allowing a private member’s bill to go to parliament; having another shot at passing the compulsory plebiscite bill; or doing nothing this term.

However Mr Turnbull has repeatedly promised not to change marriage laws without the Australian people having a say and could face the ire of coalition conservatives if he departs from that.

— With AAP