By Maria O’Sullivan

Today the High Court handed down a decision that will have ramifications for a very important social issue: the lack of marriage equality in Australia.

In the two cases – Wilkie and others v The Commonwealth and Australian Marriage Equality Ltd and others v Minister for Finance – the High Court rejected challenges to the so-called ‘Australian Marriage Law Postal Survey’. This decision therefore now permits the Australian Bureau of Statistics (ABS) to lawfully proceed with a statistical survey to obtain the views of the Australian community on a fundamental human rights question.

Due to the urgency of the case, the Court has handed down its orders, but not its detailed reasons. However, we can glean from the debate in the hearings as to why these challenges may have failed.

In summary, I would say that the challenges did not succeed because the plaintiffs were limited to arguing narrow, specific statutory interpretation arguments about the ability of the government to spend money on the survey. The case therefore turned on the meaning of words used in legislation, rather than the broader debate about rights or equality which are central to this issue.

The Arguments put to the High Court

The High Court case centred around three arguments:

1. the ‘standing’ of the plaintiffs to challenge the decision (their ability to argue the case);
2. the validity of the funding of the ABS survey (the ‘appropriation’ of $122 million to actually carry the survey out); and
3. whether in fact the survey constituted the gathering of ‘statistics’ as that term is understood to mean under legislation (the Census and Statistics Act 1905).

Readers may be surprised by the fact that very little argument was raised in the litigation as to the fairness of the process or the equality implications of the survey. Rather, because Australia does not have a federal Bill of Rights, much of the discussion was about the proper interpretation of the relevant statutes underpinning the survey, particularly: the Appropriations Act 2017-2018 and the Census and Statistics Act of 1905. As a result, much discussion turned on the meaning of key terms such as whether the survey was ‘unforeseen’ or ‘urgent’.

In contrast, if this type of case was heard in the United States, most of the debate would be about whether the denial of marriage to same sex couples constituted discrimination, using the equal protection clause of the 14th Amendment to the US Constitution. Although the subject of the current Australian case is obviously different (in that it is challenge to the survey about same-sex marriage rather than the denial of marriage itself), it is telling that the Australian High Court challenge has centred on administrative law issues rather than ones about discrimination. In comparison, the US Supreme Court held in 2015 (in a 5-4 decision in Obergefell v. Hodges ) that same-sex marriage is a fundamental constitutional right guaranteed under the 14th Amendment.

The reasons why the Challenge may have failed

Was spending money on the survey permitted?

As noted above, the plaintiff’s arguments in both cases centred on whether the Commonwealth could spend money on the survey. Normally, expenditure of this type must be placed in an Appropriations Bill and approved by Parliament. However, there is allowance in the Appropriations Act for ‘urgent’ and ‘unforeseen’ expenditure. Section 10 of the Appropriations Act provides that the Finance Minister can authorise such spending by making a determination but only if the Finance Minister is satisfied that there is an urgent need for expenditure, and that expenditure was unforeseen.

This is where it gets technical because to challenge this, the plaintiffs argued that this was a ‘jurisdictional fact’  – a technical term for a finding that must be established before the body can lawfully act.  This is an administrative law ground of review which is quite difficult to argue.  However, it has succeeded in the past in other areas. For instance, it was famously at the heart of a successful challenge to the Malaysian asylum seeker ‘swap deal’ in 2011. There, however, the High Court was able to intervene to strike down the declaration because the provision in question contained provisions related to protection of refugees and because the subject matter of the decision – transfer of asylum seekers – was considered a serious one involving potential serious harm to refugees (possible return to their home country).

In contrast, it is more difficult to establish such an error given the nature and terms of the Appropriations Bill. Remembering that, although marriage equality raises questions of fundamental human rights, the High Court case was about whether the government could spend public money on the survey – not on any discrimination issue.

And here, much depends on the interpretation given to the section. As noted above, the provision refers to the Minister’s ‘satisfaction’ about the urgency and unforeseen nature of the survey. It is therefore likely that the court held that they could not review the Minister’s decision on those matters or, alternatively, that the Minister had reasonably come to that conclusion on the evidence. Indeed, this was an argument raised by the government in the hearing: that it was for the Minister, and not parliament or the court, to be satisfied that the expenditures were urgent.

Whether a survey on opinions constitutes ‘statistical information’

Some of the plaintiffs also argued that the ABS is only empowered to collect ‘statistics’ and that term only refers to the collection of objective, factual data. They argued that it does not cover personal beliefs or opinion.

In the hearings this week, much again turned on how the relevant legislation should be interpreted. Because the Census and Statistics Act was passed in 1905, there was debate in court as to whether the meaning of ‘statistics’ should be understood as at 1905 or whether a more modern interpretation should be taken. This is important because the ABS has undertaken some surveys involving beliefs in more recent years.

Again, it is not yet clear as to how the court interpreted this. However, my view is that the surveying of people’s opinions on whether same-sex couples should be able to marry does not constitute ‘statistics’ under the relevant legislation. Although statistics relating to marriage have in fact been gathered by the ABS, these have been in relation to very practical matters – for instance: how many people are being married by civil celebrants and how many use churches.  In contrast, the upcoming marriage survey will ask highly political and (in some cases) religious questions about the nature of marriage as an institution and questions which involve the fundamental rights of persons. In my opinion, these questions are wholly unsuited to a statistical exercise.

Conclusions

The lack of marriage equality in Australia is concerning for a number of reasons. First, it fails to make sense in terms of consistency of the law. Over recent years, same sex couples have been granted equal entitlements and responsibilities in areas such as social security, employment, taxation and superannuation. These developments are reflective of the fact the law must reflect societal needs. Parliament’s reluctance to grant marriage equality as part and parcel of this broader effort to equalise relationships is therefore puzzling.

However, more importantly, the present debate reflects the failure of our legal system to properly deal with the human rights implications of governmental action. Australia is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 26 of that treaty clearly provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

As discussed above, the present High Court challenge centred on statutory interpretation and administrative law arguments. It is likely to have failed because the case turned on technical interpretations of the meaning of statutory provisions dealing with appropriations and statistics, rather than on the fundamental rights of the persons affected by this survey. This is despite the fact that Australia has agreed to abide by Article 26 of the ICCPR that requires the government to treat all persons to equal protection before the law.  Although today’s ruling is no doubt a source of disappointment to many, it is hoped that the ‘yes’ vote will succeed and that we will in fact achieve marriage equality in Australia in the near future.

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