On 29 September 2017, the High Court of Australia handed down its decision in Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40, rejecting a legal challenge to the validity of the marriage equality postal survey.

The marriage equality postal survey

In September 2016, the Plebiscite (Same-Sex Marriage) Bill 2016 (the 2016 Bill) was introduced into the House of Representatives. The 2016 Bill, if enacted, provided for a compulsory plebiscite to be conducted by the Australian Electoral Commission (AEC) which would ask enrolled voters, “Should the law be changed to allow same-sex couples to marry?” The 2016 Bill was passed by the House of Representatives, but defeated in the Senate in November 2016.

On 9 August 2017, the Finance Minister announced that the Australian Bureau of Statistics (ABS) would be conducting a “voluntary postal plebiscite”, with the ABS exercising statutory power to request information from electors on whether the law should be changed to allow same-sex couples to marry. The Finance Minister also announced an appropriation of $122 million out of the Consolidated Revenue Fund under s 10 of the Appropriation Act (No. 1) 2017-2018 (Cth) (Appropriation Act) would be made to the ABS to conduct the vote (Finance Determination). On the same day, the Treasurer directed the Australian Statistician to collect statistical information about the proportion of electors who wished to express a view about whether the law should be required to allow same-sex couples to marry, and the proportion of electors who were both for and against such a change in law (Statistics Direction).

The challenge

Two proceedings were brought in the case; the first led by independent MP Andrew Wilkie and the second led by the Australian Marriage Equality (AME) group. The plaintiffs in the Wilkie proceeding sought declarations and injunctions directed to each defendant (the Commonwealth of Australia, the Finance Minister, the Treasurer, the Australian Statistician and the Electoral Commissioner) on the following grounds:

  1. s 10 of the Appropriation Act was invalid, or alternatively that the Finance Determination was not authorised by that section;
  2. that the Statistics Direction was not authorised by s 9(1)(b) of the Census and Statistics Act 1905 (Cth) (Census Act); and
  3. that the AEC was not authorised by s 7A of the Commonwealth Electoral Act 1918 (Cth) (Electoral Act) to assist the ABS in the implementation of the Statistics Direction.

The plaintiffs in the AME proceeding sought declarations and injunctions directed to the Finance Minister and the Australian Statistician on the sole ground that the Finance Determination was not authorised by s 10 of Appropriation Act.

Section 10 of the Appropriation Act

Section 10(1) of the Appropriation Act headed ‘Advance to the Finance Minister’ provides that s 10 applies if the Finance Minister is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for, or is insufficiently provided for, in Schedule 1:

  1. because of an erroneous omission or understatement; or
  2. because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for this Act before that Bill was introduced into the House of Representatives.

Section 10(2) provides that the Appropriation Act has effect as if Schedule 1 were amended, in accordance with a determination of the Finance Minister, to make provision for so much (if any) of the expenditure as the Finance Minister determines. Under s 10(3), the appropriation cannot be more than $295 million.

The plaintiffs in the Wilkie proceeding argued s 10 was constitutionally invalid as it was not an appropriation for a purpose Parliament had lawfully determined may be carried out, and incorrectly delegated Parliament’s power of appropriation to the Finance Minister. The High Court rejected this submission, finding s 10 is constitutionally valid pursuant to sections 81 and 83 of the Constitution. Moreover, the Court held that it is s 12 of the Appropriation Act which appropriates the Consolidated Revenue Fund, not s 10. As such, to appropriate by s 12 the amount specified in s 10(3) – being $122 million – to be applied in accordance with the Finance Determination made under s 10(2) was to appropriate that amount for a purpose which Parliament had lawfully determined may be carried out.

The plaintiffs in both proceedings also submitted that the Finance Determination was not authorised by s 10 because the requirements of that section had not been met; in particular, the Finance Minister erred in satisfying himself that there was an urgent need for expenditure not provided for because the expenditure was unforeseen. The High Court held that whether expenditure was unforeseen was a matter for the Finance Minister to satisfy himself of, and the need for expenditure did not need to arise from a source external to Government. Rather, the question to be asked was “was that expenditure unforeseen by the Executive Government?” The Court held the Finance Minister did not err in concluding the requirements of s 10 had been met.

Statistics Direction

The plaintiffs in the Wilkie proceeding also submitted the Statistics Direction was not authorised by s 9(1)(b) of the Census Act, which provides that the Statistician shall, if the Treasurer so directs by notice in writing, collect such statistical information in relation to the matters so prescribed as is specified in the notice. The High Court rejected this argument, holding that the Statistics Direction was valid because:

  1. the information to be collected regarding Australians’ views on changing the laws to allow same-sex couples to marry was “statistical information”;
  2. the information was “in relation to” specified matters prescribed in specified items in table in s 13 of the Census and Statistics Regulation 2016 (Cth), being matters of law the social characteristics of the population; and
  3. there was nothing in s 9(1)(b) of the Census Act to preclude the Treasurer from specifying from whom the information was to be collected.

Finally, the argument that the AEC was not authorised by s 7A of the Electoral Act to assist the ABS in the implementation of the Statistics Direction also failed. The Court held there is not a rigid differentiation made between “functions” and “powers” under the Electoral Act and, as such, the AEC was able to assist the ABS in implementing the postal survey.