The VICE Guide to the Postal Plebiscite

The Postal Survey Lives Or Dies Today

A quick explainer for this afternoon’s High Court decision.

by Katherine Gillespie
07 September 2017, 2:25am

Update: The High Court has thrown out the challenge to the same-sex marriage postal survey. It will go ahead as planned, with a result announced on November 15.

Today is the day we find out whether or not the Federal Government's $122 million non-binding, non-compulsory "postal survey" on marriage equality will go ahead. The High Court is set to announce its decision at 2:15PM this afternoon, after hearing legal arguments over the past two days.

There are two groups challenging the postal survey as unconstitutional—one led by Tasmanian Independent MP Andrew Wilkie and another by Australian Marriage Equality with the support of Greens Senator Janet Rice.

And there are two legal arguments, both centred on the role of the ABS in conducting the survey. Firstly, that the money the government has found to fund the very expensive survey hasn't been allocated properly. The Government has the power to allocate this kind of money in "urgent" and "unforeseen" circumstances, and it is argued that a non-compulsory postal survey doesn't meet those criteria when Australia has been debating the same-sex marriage issue for literally years.

(Now, here's where things start to get stupid: even if it is ruled that the ABS can't use the money the government has allocated, the survey could technically still go ahead via the ABS using its own money instead of that coming in externally from the Government. But the plaintiffs have stated they'll ask for an injunction if this happens.)

The second major argument by the plaintiffs is that the ABS doesn't have the power to ask this kind of question in the first place. This one actually feels pretty clean cut: the Australian Bureau of Statistics exists to collect data, not opinions. Especially not opinions around marriage and sexuality. There's also a question over whether it's right to ask people to sign up to the electoral roll for a vote on a non-election matter in the first place.

Constitutional law is fascinating and tricky and weird, and ordinarily the High Court would probably mull over this kind of decision for some time. But, as with everything to do with Australia's marriage plebiscite, it has been rushed through so a decision can be announced before the ballot papers are due to be posted out to households.

The ABS and the government will be crossing their fingers and praying and very likely shitting their pants in fear—because $14 million has reportedly already been spent on the survey so far. Ballot papers are already printed, everything is ready to go (unbelievable though that may be, given recent ABS incompetence with the Census).

If all goes to plan and the government's legal advice holds up, those ballot papers will be sent out early next week. But at this point in Australian political history, we've all learned to expect the unexpected—and to expect disappointment.

Both the Government and ABS have refused to comment on what will happen if the survey is struck down by the High Court, so that's fun.

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