Wilkie & Ors v The Commonwealth & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance & Anor  HCA 40 (M105/M106 of 2017)
In M105/M106, the High Court dismissed two legal challenges to the Government's plan to carry out a voluntary postal survey on whether the law should be changed to allow same-sex couples to marry. The plaintiffs challenged the survey on the basis that it was not lawfully funded.
Since late-2016, senior members of the Federal Government expressed the view that despite opposition from the Senate, the Government remained committed to a policy of conducting a plebiscite on the question of same-sex marriage and "giving the Australian people the opportunity to pass judgment on this issue".
In March 2017, senior members of Government said that a non-legislated voluntary postal vote or postal plebiscite had been proposed as one option for delivering on this commitment, though the Government's policy remained to conduct a compulsory-attendance plebiscite on this issue.
In August 2017 the Senate rejected, for the second time, a Bill that sought to establish a compulsory-attendance plebiscite on the same-sex marriage question to be conducted by the Australian Electoral Commission (AEC).
Following the defeat of that Bill, the Government decided to use existing powers by which it can direct the Australian Statistician to collect "statistical information". Under this proposal, the Australian Bureau of Statistics (ABS) would ask each enrolled Australian voter: "should the law be changed to allow same-sex couples to marry?"
However, the ABS could not do this within its existing budget. In an attempt to solve this issue, the Finance Minister made a determination under section 10 of Appropriation Act (No. 1) 2017-2018 (the Act).
Under section 10, the Minister could increase the budget of a Government agency to meet an "urgent" need for expenditure, where that expenditure was "unforeseen" at the time the Budget was passed by Parliament in May 2017. In this way, the Finance Minister's determination under section 10 purported to make available a further $122 million to the ABS's 2017 budget. In the explanatory statement that accompanied the Finance Minister's determination, the $122 million was expressed as being made available to fund a "postal plebiscite".
After the determination was made and the money became available, the Treasurer then used his statutory powers to direct the Australian Statistician to carry out the "voluntary postal survey" (as the exercise then came to be called).
Within days, Australian Marriage Equality (AME) with Senator Janet Rice (case M106), and separately Andrew Wilkie MP with Felicity Marlowe and PFLAG Brisbane (case M105), filed proceedings in the High Court challenging the lawfulness of the Government's measures. The two sets of claims were heard together by the Court.
AME and Senator Rice argued that:
- the expenditure of money on the postal survey was not "unforeseen", as required by section 10 of the Act, because it was giving effect to the longstanding Government commitment to conduct a plebiscite or popular vote on the issue. The relevant question was whether the expenditure on these activities was unforeseen, not whether the particular Commonwealth entity ultimately tasked with carrying out the activity (here, the ABS, not the AEC) was unforeseen. The Finance Minister therefore did not have the power to appropriate the money;
- the Finance Minister, when considering what was "urgent" and "unforeseen", had confused the two; and
- the Finance Minister's powers can only be used for the "ordinary annual services of government", which the postal survey is not. This limitation arises out of historical Parliamentary practice and the title of the Act.
The plaintiffs in M105 further argued that:
- section 10 of the Act is constitutionally invalid because only the Parliament can lawfully appropriate money from the Consolidated Revenue Fund, not the Finance Minister. While the previous version of section 10 in past acts had not delegated appropriation power in this way, the current Act had changed past practice and was invalid;
- the need for expenditure on the survey was not "urgent", as required by section 10 of the Act; and
- the Treasurer's direction was invalid because the ABS was not collecting "statistical information". Instead, the information being gathered was a binary "vote".
Following a two day hearing on 5 and 6 September 2017, the High Court unanimously dismissed the arguments advanced by the plaintiffs.
Urgent and unforeseen?
The Court found that the expenditure on a postal survey was sufficiently "urgent" and "unforeseen". The Court said that the question of what is urgent and unforeseen is a subjective matter for the Finance Minister to determine. However, the Minister's satisfaction regarding these factors must have been formed reasonably and on a correct understanding of the law.
The Court found that the Minister's satisfaction was reasonably formed and legally correct. The way in which the policy of a popular vote, or plebiscite, was to be carried out had changed since the May budget, making the new cost to the ABS in carrying out the survey sufficiently "unforeseen". This is so even if an AEC plebiscite was foreseen. The Government had also decided that it needed the results of the survey by 15 November 2017, making the ABS's need for $122 million sufficiently "urgent".
The fact that the urgency and unforeseeability of the expenditure was attributable to the Government's own decision-making was irrelevant. According to the Court, neither the language of the Act nor the history of the power restricted the Minister from making the decision on the basis of changing political realities.
Ordinary annual services of government?
The Court found that the Minister's power under section 10 of the Act was not restricted, in any meaningful way, by the words "ordinary annual services of government". There has been little consensus in recent years about what comprises "the ordinary annual services of government" and it may include expenditure on new polices, including an unprecedented survey.
Is section 10 of the Act unconstitutional?
The Court dismissed the separate argument made by the plaintiffs in M105 that section 10 of the Act is unconstitutional. This is because the Minister's determination to allocate $122 million to the ABS was not a fresh appropriation. Instead, the money was already appropriated by Parliament in the May budget and set aside for the purpose of "urgent" and "unforeseen" spending. The Minister's determination merely used already appropriated funds to top up the ABS budget. Parliament's exclusive power to appropriate money was not circumvented.
Powers of the ABS?
Finally, the Court rejected the submission of the plaintiffs in M105 that the postal survey was not collecting "statistical information". The Court found that the ABS had, since at least the 1960s, collected a wide range of data about opinions. Information about personal opinions, including information as to how many people hold those beliefs, has always been "statistical information".
The plaintiffs in both M105 and M106 argued that they had the necessary legal right (or "standing") to bring their claims.
Because the Court dismissed the plaintiffs' main arguments, it did not need to decide whether the plaintiffs had standing. However, the Court did suggest that in certain instances standing might be granted if it was in the public interest to do so.
The M105/M106 decision has implications for how the scope of Federal executive power and the rule of law in Australia are understood.
The High Court has recently held in cases such as Pape v Commissioner of Taxation (2009) 238 CLR 1 and Williams v Commonwealth (Nos 1 and 2) (2012) 248 CLR 156; (2014) 252 CLR 416 that before the executive can spend public money, spending must be supported by an appropriation and, in most cases, further legislation made by Parliament authorising the spending. In M105/M106, the High Court held that up to $295 million can be leveraged by the Executive if internal government decisions create a new need for expenditure, absent legislation, and bypassing the Parliamentary scrutiny that the Court has previously considered central to a system of responsible government. Importantly, the value of the amount that the Finance Minister can draw on ($295 million, in this case) is not fixed year-to-year, and may be increased in subsequent Budgets. It is not yet clear whether there is some constitutionally-prescribed upper limit on the amount that can be assigned to the Finance Minister's appropriation powers in any one year.
The decision also has implications for the Government's ability to engage in a form of "direct democracy". The fact that the ABS has the power to ask questions about personal opinions is not a revelation, as the Court stressed. However, we now know that the Government can conduct surveys of this scale, directed at the entire Australian electorate and concerning policy questions or law reform proposals, without subjecting those surveys to the legislative process. The result leaves open the possibility of other mass-surveys concerning civil liberties and minority rights to be funded in a similar way.
Finally, the circumstances of the case highlight how, in the absence of a substantive human rights instrument in Australia, it is sometimes necessary to challenge Government action on administrative grounds rather than on the basis of the substantive human rights concerned. In a world where such a human rights instrument did exist, rights prohibiting discrimination or safeguarding human dignity may have been relevant to the circumstances of the M105/M106 case.
Australia now has marriage equality, but the postal survey has been criticised by civil society organisations and a recent report reveals the negative impact of the postal survey on LGBTIQ+ Australians.
With the Court hinting at the importance of public interest litigation in its discussion of standing, it may remain for these fundamental questions about the rule of law in Australia to be re-opened on another day.
The full decision can be found here.
Matthew Psycharis is a Lawyer at Allens.
The Human Rights Law Centre represented Australian Marriage Equality and Senator Janet Rice in the M106 proceeding. We thank our exceptional pro bono team including Katherine Richardson SC, James Emmett, Surya Palaniappan and Gerald Ng for their outstanding work on this case.