The same-sex marriage survey: testing Executive Power in the High Court

At 2.15pm yesterday many Australians were holding their breath and waiting for the High Court to deliver their decision about the validity of same sex marriage postal survey. We didn’t have to wait long, within a minute or two we had an answer. There was a sigh of relief for the Government as the High Court determined that the survey can go ahead. While there were many others tweeting or stating their disappointment and anger in the media.

For some who are supporters of same-sex marriage this postal survey is very much unwanted. They see this as tiresome and hurtful. But we shouldn’t be directing any anger towards the Court for this decision. The role of the High Court in this case was to determine the legality of Executive Government actions. Personal opinions on what the Executive is doing cannot be considered. The Court examined whether the action of the Executive to fund the survey through the Finance Ministers advance fund and to direct the Australian Bureau of Statistics (ABS) to complete the survey, was lawful using existing legislation. They found that it is valid.

This is what it boils down to. The 2017-18 budget contained an advance fund of $295 million for the Finance Minister. This is an emergency fund to be used for urgent and unforeseen matters. The Parliament through the Appropriation Act (No 1) passed legislation giving the Finance Minister this cash. The money was legally appropriated by the Parliament in June according to section 83 of the Constitution:

Section 83 Money to be appropriated by law
No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law.

There is no issue there, the Parliament passed a law that gave the Finance Minister $295 million. The Treasurer through the Census and Statistics Act 1905 then directed the Australian Statistician, through the ABS to:

request statistical information from all Australians on the Commonwealth Electoral Roll, as to their views on whether or not the law should be changed to allow same sex couples to marry.

However, the ABS could not absorb the cost of running this survey within their annual budget of $348 million dollars. The ABS cannot ignore a direction from the Treasurer, meaning that it could be asserted that the $122 million needed for this survey was urgent and unforeseen. As such the Finance Minister made the $122 available to the ABS.

Executive action

We hear all the time about US President Donald Trump signing executive orders. What has happened in regards to the Same Sex Marriage Law Survey is similar. The Government has used existing legislation to direct the ABS to run a survey on same sex marriage.

The running of Government departments is the role of the Executive Government. Departments are administered by Government Ministers which is outlined in Chapter II of the Constitution:

Section 64 Ministers of State
The Governor‑General may appoint officers to administer such departments of State of the Commonwealth as the Governor‑General in Council may establish….

The ABS is held in the Treasury portfolio. This means that the Treasurer Scott Morrison (or other junior Ministers in that portfolio) administer and direct the ABS.

Expanding Executive power

It has been argued by some that this judgement may have expanded the Executive power, while others argue that this decision has simply clarified Executive power. Governments are not normally keen on going to the High Court to discover afterwards that their powers are limited, so a case like this is often a gamble.

Checks and balances are built into our political system through the Constitution. Each branch of Government is a check on the power of the others. In this case it was determined that the Executive branch of Government has the power to conduct this survey. The Legislative branch of Government, the Parliament, has already provided the funding through existing appropriations and current legislation allows the ABS to conduct the survey.

The Judicial branch of Government, our High Court was called upon to determine whether the Executive branch of Government had the power to fund and run the survey.  It is the role of the High Court to resolve disputes between the other two branches of Government.

What might be the ongoing outcome from such a decision of the High Court?

The Finance Minister’s advance fund is generally considered an emergency fund, which is appropriated by the Parliament at budget time. The Senate has previously blocked the legislation for a same sex marriage plebiscite. They may consider that in this case the fund has been used to get around the Parliament. In the future the Senate may be reluctant to pass bills that appropriate so much money into the advance fund. 


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