• Barristers challenging survey argue ABS has no authority to hold vote • QC for plaintiff says ballot is ‘putting to the public a vote on her family unit’

The Australian Bureau of Statistics has no authority to hold the Coalition’s “unique and offensive” postal vote on same-sex marriage, lawyers have told the high court on the first day of a landmark legal challenge.

Barristers for critics of the vote, who are seeking to have it ruled illegal, argued their case before a packed courtroom in Melbourne headed by the chief justice, Susan Kiefel. The court’s verdict will determine whether the vote can go ahead, and could pave the way for a parliamentary vote on same-sex marriage if it rules against the government.

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Those challenging the survey argue the government acted inappropriately in allocating $122m to the ABS to conduct the vote; that the question of same-sex marriage is not within the scope of statistics collected by the ABS; and that it was wrong to ask people to sign up to the electoral roll for the vote because the issue could not be considered an electoral matter.

The court only has to be convinced that the government exceeded its power in one of these areas to find the postal survey should not go ahead.

Ron Merkel QC, representing Tasmanian independent MP Andrew Wilkie, PFlag (Parents, Family and Friends of Lesbians and Gays), and Melbourne lesbian mother Felicity Marlowe, said Marlowe’s interest in the case went beyond the fact the outcome would affect her personally. She has three children with her same-sex partner.

“It’s putting to the public a vote on her family unit,” Merkel said. “We will demonstrate how unique and offensive it is that a personal opinion is being asked on a relationship of this kind.”

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While none of the seven high court judges challenged Marlowe’s standing in the case, they spent some time questioning the involvement of Wilkie. Merkel told the court that by holding a postal vote parliament had been bypassed and Wilkie had been denied the opportunity to vote in parliament, and that he also had a special interest as one of the millions of Australians who would receive a postal survey.

Judge Virginia Bell queried: “A special interest that he shares with 16 million other Australians?”

Merkel replied that if Wilkie did not have standing to challenge the case, no one did.

Barrister Kathleen Foley also told the court that the ABS did not have the power to ask people for an opinion. But the question to be asked in the postal vote – “Should the law be changed to allow same-sex couples to marry?” – would do exactly that, she said.

The bureau could collect statistics about the facts of marriages that had taken place; for example, how many Australians had married or divorced in a year, or the age when they married, Foley said. But she said asking Australians for their opinion on marriage was beyond the bureau’s scope.

“We say that a person’s opinion about whether the law should be changed to permit same-sex marriage is not a distinguishing feature of the population,” she said.

Race, gender, or social class were all examples of characteristics or distinguishing features, she said. “We say an opinion on same-sex marriage can’t be understood as a characteristic.” She further argued that if the postal survey was not a gathering of statistics, then the Australian Electoral Commission had no authority to take part in the process other than providing the electoral roll to the bureau.

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Kiefel responded that statistics about the opinions of Australians had been collected since colonisation, including opinions about what Australia might look like and how land might be used.

She challenged Foley to explain how collecting opinions on same-sex marriage were any different to these historical surveys. Foley responded that those past surveys never asked Australians about their personal beliefs.

After another discussion about whether opinion could be considered a statistic, Kiefel told Foley that her argument that the court should consider the census and Statistics Act as it existed when created in 1905 was not helping her argument, before abruptly adjourning for lunch.

When the hearing continued on Tuesday afternoon, senior counsel Kate Richardson, acting for the case brought before the court by Australian Marriage Equality and Senator Janet Rice for the Human Rights Law Centre, focused on the Appropriation Act. The act states that the finance minister – in this case Mathias Cormann – only has the power to unlock funds for a matter like the same-sex marriage postal survey in urgent and unforeseen circumstances. Cormann used the act to allocate $122m to the ABS to conduct the voluntary postal vote.

Richardson said Cormann knew there was a pre-election commitment to hold a compulsory plebiscite on same-sex marriage, which the government costed at $177m. She said cabinet made a decision that if the 2016 plebiscite bill failed to pass, the issue would go to a voluntary postal vote.

“What we say is that it’s not the government decision [to hold a postal vote] that needs to be unforeseen, it’s the expenditure,” she said, adding that, given a vote was an election promise, the expenditure was foreseen.

She also referred to a press release issued by Cormann on 9 August in which he called the postal-survey a plebiscite, indicating he viewed a voluntary survey and a compulsory plebiscite as similar. Richardson said this also diminished Cormann’s argument that the postal vote was unforeseen.

The case is expected to run for two days. On Wednesday, the court will hear from lawyers representing the government.

