I’m delighted to report that the High Court’s website crashed shortly before 2.15pm today. With considerably more ambivalence, I note the court’s unanimous decision to dismiss both legal challenges to the government’s planned postal survey on same-sex marriage, which will now be going ahead.
I did think the challenges had pretty good prospects, but obviously the court thought otherwise. We won’t know on what basis for a while, until the court gets around to publishing its detailed reasons. For now, all we know is that the plaintiffs failed and will be paying all the costs. That could be because the court decided that they didn’t have standing to bring the cases at all, or it might have been a judgment on the merits.
That’ll all be entertainment for law nerds, but the carnival will have well and truly moved on by the time the story is properly told. For we now step blindly down a path never trodden before: the guidance of lawmaking by non-compulsory, statistically meaningless opinion poll.
My personal ambivalence arises from the fact that, had the government lost the case, it would have undoubtedly kicked marriage equality back into the long grass and we’d be left waiting until after the next election. At least, once we get past the outpouring of disgusting bigotry and malicious misdirection that the survey process is going to encourage*, this way we might actually see Parliament get around to doing its job and holding a vote before Christmas. This might yet be the year in which Australia finally delivers equal marriage rights for everyone.
The two challenges were on grounds that made a lot of sense to me. First, there was the question of whether the Australian Bureau of Statistics can legitimately conduct the survey. Its enabling legislation allows it to “collect statistical information” on various things, including marriage. The government purported to direct it to run the survey and collect the statistics of how many people vote yes or no. I assume the High Court figured that adding up two columns of numbers and pointing out which one is longer constitutes a statistical exercise. OK then.
The second challenge was the funding. The government dug into its special war chest of money set aside for “urgent and unforeseen” expenditure. Which, in a way, this was. The urgency is only related to the Prime Minister’s grip on his job, and it was unforeseen in the sense that nobody ever thought of the postal survey as anything more than a last-gasp stalling tactic after the compulsory plebiscite strategy had run out of steam.
It will all make sense when the court’s full reasoning is revealed. No doubt the judges got the law right, because the law is quite literally what the High Court says it is. However, the decision may well have downstream consequences, considering the width of the licence the government has just been given and how far outside any previous convention this exercise sits.
All eyes now on the letter box, in which our survey forms will soon appear. I would prefer to write “Suck on this, homophobes” on mine, but will make do with a YES in rainbow colours.
What this case proves is absolutely nothing. The government has always had power to inventively circumvent the will of Parliament, and maybe that scope has just been widened. We’ll see. In the real world, the one in which same-sex couples are still legally lesser citizens than their heterosexual counterparts, the message from the law will sound a lot like what they’ve heard plenty of times before: best of luck, but you’re on your own.
*case in point: ACL head Lyle Shelton’s first tweet, three minutes post-verdict: