Quick summary of the plebisurvey High Court proceedings going into judgment day
The High Court will be handing down their judgment on the government’s plebiscite/survey into marriage equality at around 2:15pm this afternoon.
In terms of arguments, the first bar that the plaintiffs (the people arguing against the plebisurvey) have to cross is that at least some of them have “standing” to be heard. Basically, that’s arguing that they’re more closely affected than any other member of the community, since the courts don’t want random people bringing actions on issues that they have nothing to do with. There are a couple of MPs arguing that they have standing on the basis that the government has sought to bypass parliament, and the High Court did not seem entirely convinced by that argument. There were also LGBTQ people in same-sex relationships arguing that they have standing because the plebisurvey is inviting people to cast judgment on their families. The High Court didn’t raise any significant issues with that argument. Ultimately, I think the High Court will find that at least some of the plaintiffs have standing to bring the case before the Court.
After that, the plaintiffs need to convince the High Court that at least one of their arguments for why the way that the government has run the plebisurvey is unlawful. These arguments are not about whether the plebisurvey is good policy or about whether it’s hurtful or any of that, because it’s not the role of the High Court to consider those sorts of policy arguments. These arguments are only about whether the government’s mechanism for running the plebisurvey is within the law. And, while it’s easy to get pessimistic when the court seems sceptical of one argument or another, we have to remember that we don’t need all arguments to succeed so long as at least one does.
That the section of the legislation which allows the finance minister to make an advance is unconstitutional. The argument is that it’s an impermissible delegation of legislative power which should only belong to parliament, since it allows the finance minister to allocate that block of funding for any purpose. I don’t think the High Court were convinced by that argument, given the long history of that sort of legislation.
That the plebisurvey was not “unforeseen”, and therefore isn’t a permissible use of the finance minister’s advance. This argument is going to turn on exactly what needs to have been foreseen. It’s common ground that the government foresaw that they would be running some sort of plebiscite on marriage equality, but that they didn’t necessarily foresee that it would be in the form of a postal survey run by the Australian Bureau of Statistics (as opposed to the Australian Electoral Commission). Key question is whether the fact that they didn’t foresee that the plebisurvey would be run by the ABS, and therefore didn’t allocate funding for it to the ABS in their budget, is enough to make the plebisurvey “unforeseen”. This could go either way, but I think that it’s more likely that the High Court will find that the fact that the ABS would run the plebisurvey is enough to make it unforeseen since funding is typically allocated to a particular government body.
That the plebisurvey was not “urgent”, and therefore isn’t a permissible use of the finance minister’s advance. The government argue that funding for the plebisurvey is urgent on the basis that the government had a policy to run a plebisurvey by November and it therefore needed funding before the next budget. They point to funding for art centres and sport complexes and say that those aren’t any more urgent than the plebisurvey. The plaintiffs argue that a self-imposed deadline is not enough to make something urgent, especially when the government had enough time to go back to parliament for funding if they wanted to. I suspect that this is the strongest argument for the plaintiffs, and the one that’s most likely to succeed.
That the plebisurvey isn’t an exercise in gathering “statistics” since it’s gathering opinions rather than facts and therefore falls outside the legislative scope of the ABS. The government pointed out that the ABS have previously surveyed opinion on other issues. The plaintiffs also tried to argue that it’s a vote rather than a statistical exercise and therefore isn’t statistics, but the court didn’t seem convinced by that. I don’t really expect this argument to succeed, but it was always more of a long shot.
That the AEC aren’t allowed to participate in the doings of the ABS beyond providing the electoral role, and that it’s therefore outside their power to e.g. forward ballots to silent voters. I haven’t seen a lot of commentary on the court’s response to this argument, but I don’t know that it’d be enough to down the whole plebisurvey anyway (though it’d be a headache for the government if it’s decided that the AEC can’t send ballots to silent voters, since that would make the survey a whole lot less representative).
It’s worth noting that arguments 1-3 (which are the stronger arguments) only go to the lawfulness of the method of funding the plebisurvey and not to the lawfulness of the plebisurvey itself. That means that even if the funding is struck down, it would be open to the government to tell the ABS to keep running the plebisurvey using it’s own budget. I’m not sure how likely that is, since the cost of the plebisurvey is a third of the ABS’s annual budget and the ABS budget has already been cut to the bone, but it’s a possibility to keep in mind.
Again, to reiterate: the High Court isn’t deciding whether the plebisurvey is a good idea. They’re only looking at the method that the government have used to enact the survey, and whether that fits into existing law. Whatever their decision, they’re not judging our worth. We’ve got to make sure that we remember that.
