As you might have vaguely noticed, there’s this marriage equality postal survey thing going on currently and for the next, oh joy, six weeks. It’s happening because (a) Malcolm Turnbull has all the moral courage of a wet biscuit, and (b) the High Court says it’s legally fine. The latter part was pronounced by the court a while back without giving its reasons, due to the urgency of the need for the respectful debate to begin.

The court’s detailed reasoning is now out, and it’s as impenetrably dull as you were fully expecting. However, lurking within the exquisitely boring deconstruction of section 10 of the Appropriation Act No 1 2017-2018 (Cth) is a signal victory awarded by the High Court to the executive arm of government, presaging future things that won’t be good.

Two challenges were brought against the government’s attempt to spend $122 million on the postal survey and have it conducted by the Australian Bureau of Statistics rather than the more obvious Australian Electoral Commission. The focus of the exercise was the government’s desire to do something plebiscite-ish without having to get Parliament’s consent.

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The first ground of challenge was that the government couldn’t spend the $122 million without an act of Parliament. The arguments are really technical. The central point, however, is that the constitution is very clear on this point: the executive government can’t just spend money. It has to go to Parliament each year and ask for enough money to do everything it wants and needs to do. For the 2017-2018 budget year, the amount it sought was $88,751,598,000.

It’s always been a given that some spending needs will pop up during the year unexpectedly, which weren’t provided for in the budget. To deal with that, the convention has been to add an extra slush fund, which Parliament is asked to effectively pre-approve, while also allowing the government a fair bit of leeway as to how it gets used. That amount in 2017-2018 was $295 million.

It’s not quite free money. The Finance Minister can put his mitts on it, but only if he “is satisfied that there is an urgent need for expenditure” that wasn’t provided for in the budget, because it was “unforeseen” at that time.

Finance Minister Mathias Cormann had declared that he was thus satisfied in relation to the postal survey, explaining in a sworn affidavit that the survey wasn’t in contemplation at the time of the budget back in May. At least we now have official confirmation that the survey plan was just a last-second thought bubble.

[On what legal basis did the High Court approve a statistically meaningless opinion poll?]

The fight in court was basically about whether Cormann could, with a straight face, legitimately say that this was all genuinely urgent and unforeseen. The High Court said yes, he could do that. The only question that needed to be answered was whether the minister himself was “satisfied” of this, which is a subjective test and would only be open to challenge if it were patently bullshit (that’s a paraphrase of the court’s reasoning).

Legal fictions are frequently amusing, and this is a good one. While the urgency of the postal survey is patently bullshit in the literal sense of the term, in the legal sense it’s entirely defensible. The minister being satisfied that it’s about to rain, and having good political reasons for saying so, permits him or her to spend our money on umbrellas — notwithstanding the clear blueness of the sky.

Anyway, moving on the second ground of challenge. This one seemed to me — and some actual constitutional lawyers — to have pretty good legs. The High Court thought otherwise, dismissing it in a couple of paragraphs.

Here, the argument was about whether the ABS can legitimately conduct the survey. A government agency can only do things that it is empowered by law to do. The ABS’ powers come from the Census and Statistics Act, which allows the treasurer to direct the ABS to “collect statistical information” in relation to a bunch of prescribed subject matters. The two issues in contention were whether the survey, which is really a voluntary opinion poll, can constitute statistical information, and whether it relates sufficiently to any of the prescribed matters on which the ABS can collect data.

Yeah, easy, said the court. It may well be that the survey could be described as a “vote” or a “plebiscite”, but that’s irrelevant. The only question is whether it can be called “statistical information”. Now, I thought there were two problems with that: first, the survey is utterly un-statistical because, being voluntary, it will have vastly less statistical validity than a random phone poll of 100 people. Secondly, how does collecting people’s opinions turn into anything approximating statistical data?

Apparently, no problem, judging from the dismissive treatment of the argument by the court. Likewise, no problem at all concluding that this survey has a sufficiently close relationship to a number of the subject matters on which the ABS is empowered to collect data: “marriages”, “law” and “the social … characteristics of the population”.

[Attention religious bakers: you may not discriminate against LGBTI people. It is the law.]

In its rejection of both challenges, the High Court applied impeccable legal logic; it can’t be faulted for being too political or for being plain wrong. However, it could equally impeccably have gone the other way. There were good arguments, better than the court gave credit, onto which it could have latched to take this opportunity to rein in a rampaging executive.

The immediate result — that this shameful exercise in undemocratic vilification of a battered minority is now upon us — is what it is. Nothing to do now but survive it.

The bigger consequence is that this case represents another step down the path of ascendancy for the executive arm of government over its two rivals. The constitution was designed to strike a delicate balance between the legislature, executive and judiciary, and it recognised that the executive is by far the most dangerous of the three if not appropriately restrained.

The court’s breezy willingness to let this bullshit exercise through the gate, denying Parliament any opportunity to place a check on either the massive expenditure involved, or the obvious stretching of the powers of a government agency (the ABS) way beyond its historically and logically contemplated role, is a poor precedent.

The end result is twofold:

  1. Within only the constraint of the size of its slush fund, the executive government can spend that money however it wants so long as the Finance Minister says it’s urgent (for which, read expedient), and Parliament has no way of placing a check or balance on the exercise.
  2. The High Court has signalled a liberal attitude to how elastically it will allow the government to interpret the limitations on what it and its agencies can do.  This promises to have untold consequences.

There is, of course, a third outcome, which I’d rather not mention. Conducting the business of government by holding wastefully expensive, voluntary and therefore meaningless, and carelessly socially destructive, opinion polls, is now totes legit. A survey on women’s reproductive rights, anyone? Can’t wait.

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Peter Fray
Peter Fray
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