Allocating $122m from a special fund to pay for the marriage law postal survey was lawful because the government reasonably considered it “urgent” and “unforeseen”, the high court has held.



On Thursday the court released the reasons for its unanimous decision on 7 September to dismiss two challenges to the postal survey, in which it accepted the government’s case the expenditure was unforeseen at the time of the May budget because the postal survey did not become policy until early August.

The case preserves the government’s broad discretion to use the finance minister’s advance for expenditure the minister believes is “urgent” and “unforeseen”, rejecting the imposition of extra legislative oversight on spending between budget cycles.

On 9 August the government allocated $122m to the Australian Bureau of Statistics to pay for the postal survey from the $295m finance minister’s advance.

The challenges, one brought by independent MP Andrew Wilkie, lesbian mother Felicity Marlowe and Parents and Friends of Lesbians and Gays Brisbane, the other by Australian Marriage Equality and the Greens senator Janet Rice, argued the expenditure must objectively be “unforeseen”.

The judges unanimously held that this “radical departure” from the interpretation of appropriation laws was not supported, accepting the government’s case it is up to the finance minister so long as his or her belief is “formed reasonably and on a correct understanding of the law”.

The need for $122m did not arise until cabinet decided on the postal survey on 7 August, at which time the finance minister, Mathias Cormann, was satisfied it was urgent because the results of the survey were to be known no later than 15 November 2017.

The plaintiffs submitted that, although a postal survey by the ABS was not decided on until August, the government had considered a voluntary plebiscite to be conducted by the Australian Electoral Commission as early as March that year.

But the court said the question was whether the specific expenditure was unforeseen, not “other expenditure directed to achieving the same or a similar result”.

They rejected the plaintiffs’ case that the need for funds must arise from some source external to government, holding that by its very nature government expenditure may respond to external circumstances but results from an internal decision.

There was no need for Cormann to consider bringing a special bill to parliament to authorise the expenditure, which he considered “urgent” because it was not funded in the 2017 budget in May and was due to be incurred before the 2018 budget.

The judges held that the decision to allocate $122m was not an appropriation “by executive fiat”, merely an allocation of money already appropriated by the $295m finance minister’s advance.



Annual appropriations laws providing for the advance fund did not breach the constitution “neither in this century nor the last”, they said.

On the issue of whether the postal survey – which is technically a direction to the ABS to collect statistical information – is actually, in substance, a “vote” or “plebiscite”, the court said it was irrelevant that it might be characterised as such.

The court said it could not ignore the fact the ABS had collected a wide range of data concerning opinions and beliefs in the administration of the Statistics Act since at least the 1960s.

The ABS has power to collect statistics about marriages, law and “the social characteristics of the population”, the court held, and collecting Australians’ opinions about changing the law to allow same-sex couples to marry was “plainly in relation to each of [these] subject matters”.

The court chose not to decide the question of whether the plaintiffs had standing, after the government submitted parliamentarians and aggrieved citizens did not have a right to challenge executive spending for a survey it said did not affect legal rights.

The judges said the arguments to establish standing were inadequate and it was not necessary to decide because the plaintiffs lost the substantive case.