Wilkie v Commonwealth
   HOME

TheInfoList



OR:

''Wilkie v Commonwealth'' and ''Australian Marriage Equality v Minister for Finance'',. were two cases heard simultaneously by the High Court which held that the expenditure for the
Australian Marriage Law Postal Survey The Australian Marriage Law Postal Survey was a national survey designed to gauge support for legalising same-sex marriage in Australia. The survey was held via the postal service between 12 September and 7 November 2017. Unlike voting in ...
had been approved by Parliament and involved the collection of "statistical information" that could be conducted by the
Australian Bureau of Statistics The Australian Bureau of Statistics (ABS) is the independent statutory agency of the Australian Government responsible for statistical collection and analysis and for giving evidence-based advice to federal, state and territory governments ...
. The case was heard urgently and the Court pronounced its orders on 7 September 2017, and delivered their reasons for judgment on 28 September 2017.


Background

When the idea of a postal plebiscite/vote was first raised in August, several legal experts warned of concerns regarding the capacity for such an event to be held without parliamentary approval through enactment of specific legislation. Constitutional expert George Williams described the proposal of the postal survey as a "poorly constructed vote for which
he government He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
doesn't have the correct
egal Egal or Égal may refer to: People * Ali Sugule Egal (1936–2016), Somali composer, poet and playwright * Fabienne Égal (born 1954), French announcer and television host * Liban Abdi Egal, Somali entrepreneur * Muhammad Haji Ibrahim Egal (1928– ...
procedures". Anne Twomey, a constitutional law expert from the
University of Sydney The University of Sydney (USYD), also known as Sydney University, or informally Sydney Uni, is a public research university located in Sydney, Australia. Founded in 1850, it is the oldest university in Australia and is one of the country's si ...
expressed scepticism over the role of the Australian Bureau of Statistics (ABS) in the survey, stating that "the power of the ABS is to collect statistics...rather than opinions. Someone might therefore challenge it on the ground that it does not fall within the legislative functions of the ABS". Both experts further doubted the capacity of the
Finance Minister A finance minister is an executive or cabinet position in charge of one or more of government finances, economic policy and financial regulation. A finance minister's portfolio has a large variety of names around the world, such as "treasury", " ...
to allocate the necessary funding ($122 million) to the ABS, considering that such a non-legislated advance to a department can only be made in "urgent" and "unforeseen circumstances". Some constitutional law experts said the survey was likely to be struck down by the courts because " ven the long-running debate on same-sex marriage, it is far from obvious that it fits into these rgent and unforeseencategories." The government refused to release to the public the legal advice it received, though
Attorney-General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...
George Brandis George Henry Brandis (born 22 June 1957) is a former Australian politician. He was a Senator for Queensland from 2000 to 2018, representing the Liberal Party, and was a cabinet minister in the Abbott and Turnbull governments. He was later Hi ...
stated in an interview with the
ABC ABC are the first three letters of the Latin script known as the alphabet. ABC or abc may also refer to: Arts, entertainment, and media Broadcasting * American Broadcasting Company, a commercial U.S. TV broadcaster ** Disney–ABC Television ...
''
7.30 ''7.30'' is an Australian nightly television current affairs program which broadcasts on ABC and ABC News at on Monday to Thursday nights. The program is currently hosted by Sarah Ferguson. History The program first aired on 7 March 2011, re ...
'' program that "we have acted on Solicitor-General's advice in which we are confident". During court proceedings, the government revealed it was investigating ways to continue with the postal survey even if the legal challenges were successful. Two legal challenges were lodged contesting the legality of the survey with the
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
, both on the grounds of unlawful funding from legally-specified funds and unlawful operation by the ABS. The High Court agreed to hear arguments in its cases on 5 and 6 September 2017 without ordering any temporary injunction. An additional complaint was lodged by a 17-year-old boy with the
Australian Human Rights Commission The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...
in August 2017, on the basis that the rules did not allow provisionally enrolled 16- and 17-year-old Australians the right to participate in the survey. The complaint could have led to a federal court case to argue for the right of about 50,000 Australians aged 16 and 17 on the electoral roll to vote, however the boy dropped his complaint on 22 September, after a Greens amendment to the ''Marriage Law Survey (Additional Safeguards) Act 2017'' was rejected by the
Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
earlier in the month. Legal counsel to the boy advised that the rejected amendment would make the age discrimination complaint much more difficult to argue, because parliament had considered and rejected extending the vote to enrolled 16- and 17-year-olds.


Argent–Marlowe–Wilkie challenge

Same-sex marriage advocates Shelley Argent (national spokeswoman of
Parents and Friends of Lesbians and Gays PFLAG is the United States' first and largest organization uniting parents, families, and allies with people who are lesbian, gay, bisexual, transgender, and queer (LGBTQ+). PFLAG National is the national organization, which provides support to ...
) and Felicity Marlowe (member of Rainbow Families), along with
independent Independent or Independents may refer to: Arts, entertainment, and media Artist groups * Independents (artist group), a group of modernist painters based in the New Hope, Pennsylvania, area of the United States during the early 1930s * Independ ...
MP
Andrew Wilkie Andrew Damien Wilkie (born 8 November 1961) is an Australian politician and independent federal member for Clark. Before entering politics Wilkie was an infantry officer in the Australian Army., Australian Parliament House Biographies; 19 Augu ...
, announced they would challenge the postal survey in the High Court on 9 August 2017 and seek a temporary injunction. The Argent-Marlowe-Wilkie challenge was against the
Commonwealth of Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
, Mathias Cormann,
Scott Morrison Scott John Morrison (; born 13 May 1968) is an Australian politician. He served as the 30th prime minister of Australia and as Leader of the Liberal Party of Australia from 2018 to 2022, and is currently the member of parliament (MP) for t ...
, David Kalisch and Tom Rogers, the electoral commissioner. In the government's submissions to this court challenge the government responded that " is not correct to characterise the activity f participation in the surveyas a vote." The court questioned the validity of Wilkie's claim to standing on the case by virtue of his being a member of Parliament, but did not challenge Marlowe's claim to standing as being in a same-sex relationship. Solicitor-General
Stephen Donaghue Stephen Paul Donaghue (born 7 January 1973) is an Australian barrister and constitutional lawyer and the present Solicitor-General of Australia. Donaghue has been Solicitor-General since 16 January 2017, having been appointed following the res ...
, for the government, argued that this was not enough for Marlowe to bring the case.


Australian Marriage Equality–Rice challenge

On 10 August, the Human Rights Law Centre filed a legal action on behalf of
Australian Marriage Equality Australian Marriage Equality (AME) was an advocacy group driven by volunteers who came together to pursue the legalisation of same-sex marriage in Australia. AME partnered with a diverse range of organisations and supporters across the country to ...
and Greens Senator
Janet Rice Janet Elizabeth Rice (born 18 November 1960) is an Australian politician, member of the Australian Greens, former councillor and mayor of Maribyrnong, environmentalist, facilitator and one of the founding members of the Victorian Greens. Early ...
. The Australian Marriage Equality-Rice challenge was against Cormann and Kalisch, and argued that the provisions used by Cormann to finance the survey could only be used for ordinary government business.


High Court judgment

The High Court handed down a summary ruling in both cases on 7 September 2017. The court determined that the survey was lawful, allowing it to proceed as scheduled. The challengers have been ordered to pay costs. The High Court handed down its unanimous reasons on 28 September 2017, finding that $295 million had been appropriated by parliament, and that whether the expenditure was unforeseen was a matter for the Minister's satisfaction and there was no error of law in either his reasoning or his conclusion. The information to be collected was "statistical information" of matters prescribed in the ''Census and Statistics Regulation'' 2016 (Cth). As the court had considered and rejected the grounds of the application, there was no need to decide whether or not whether the plaintiffs had standing.


See also

*''
Williams v Commonwealth ''Williams v Commonwealth of Australia''. (also known as the "School chaplains case") is a landmark judgment of the High Court. The matter related to the power of the Commonwealth executive government to enter into contracts and spend public ...
'' *''
Williams v Commonwealth (No 2) ''Williams v Commonwealth of Australia'' 014HCA 23 (also known as ''Williams (No 2)'') judgment of the High Court.''Williams v Commonwealth of Australia'' It is related to executive prerogative and spending in relation to the Australian Gover ...
''


References

{{Reflist, 30em High Court of Australia cases 2017 in case law 2017 in Australian law Same-sex marriage in Australia