• Barristers challenging survey argue ABS has no authority to hold vote • QC for plaintiff says ballot is ‘putting to the public a vote on her family unit’

The Australian Bureau of Statistics has no authority to hold the Coalition’s “unique and offensive” postal vote on same-sex marriage, lawyers have told the high court on the first day of a landmark legal challenge.

Barristers for critics of the vote, who are seeking to have it ruled illegal, argued their case before a packed courtroom in Melbourne headed by the chief justice, Susan Kiefel. The court’s verdict will determine whether the vote can go ahead, and could pave the way for a parliamentary vote on same-sex marriage if it rules against the government.

High court hears challenges to same-sex marriage postal survey - live Read more

Those challenging the survey argue the government acted inappropriately in allocating $122m to the ABS to conduct the vote; that the question of same-sex marriage is not within the scope of statistics collected by the ABS; and that it was wrong to ask people to sign up to the electoral roll for the vote because the issue could not be considered an electoral matter.

The court only has to be convinced that the government exceeded its power in one of these areas to find the postal survey should not go ahead.

Ron Merkel QC, representing Tasmanian independent MP Andrew Wilkie, PFlag (Parents, Family and Friends of Lesbians and Gays), and Melbourne lesbian mother Felicity Marlowe, said Marlowe’s interest in the case went beyond the fact the outcome would affect her personally. She has three children with her same-sex partner.

“It’s putting to the public a vote on her family unit,” Merkel said. “We will demonstrate how unique and offensive it is that a personal opinion is being asked on a relationship of this kind.”

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While none of the seven high court judges challenged Marlowe’s standing in the case, they spent some time questioning the involvement of Wilkie. Merkel told the court that by holding a postal vote parliament had been bypassed and Wilkie had been denied the opportunity to vote in parliament, and that he also had a special interest as one of the millions of Australians who would receive a postal survey.

Judge Virginia Bell queried: “A special interest that he shares with 16 million other Australians?”

Merkel replied that if Wilkie did not have standing to challenge the case, no one did.

Barrister Kathleen Foley also told the court that the ABS did not have the power to ask people for an opinion. But the question to be asked in the postal vote – “Should the law be changed to allow same-sex couples to marry?” – would do exactly that, she said.

The bureau could collect statistics about the facts of marriages that had taken place; for example, how many Australians had married or divorced in a year, or the age when they married, Foley said. But she said asking Australians for their opinion on marriage was beyond the bureau’s scope.

“We say that a person’s opinion about whether the law should be changed to permit same-sex marriage is not a distinguishing feature of the population,” she said.

Race, gender, or social class were all examples of characteristics or distinguishing features, she said. “We say an opinion on same-sex marriage can’t be understood as a characteristic.” She further argued that if the postal survey was not a gathering of statistics, then the Australian Electoral Commission had no authority to take part in the process other than providing the electoral roll to the bureau.

Marriage equality postal survey in the balance as high court hears challenges Read more

Kiefel responded that statistics about the opinions of Australians had been collected since colonisation, including opinions about what Australia might look like and how land might be used.

She challenged Foley to explain how collecting opinions on same-sex marriage were any different to these historical surveys. Foley responded that those past surveys never asked Australians about their personal beliefs.

After another discussion about whether opinion could be considered a statistic, Kiefel told Foley that her argument that the court should consider the census and Statistics Act as it existed when created in 1905 was not helping her argument, before abruptly adjourning for lunch.

When the hearing continued on Tuesday afternoon, senior counsel Kate Richardson, acting for the case brought before the court by Australian Marriage Equality and Senator Janet Rice for the Human Rights Law Centre, focused on the Appropriation Act. The act states that the finance minister – in this case Mathias Cormann – only has the power to unlock funds for a matter like the same-sex marriage postal survey in urgent and unforeseen circumstances. Cormann used the act to allocate $122m to the ABS to conduct the voluntary postal vote.

Richardson said Cormann knew there was a pre-election commitment to hold a compulsory plebiscite on same-sex marriage, which the government costed at $177m. She said cabinet made a decision that if the 2016 plebiscite bill failed to pass, the issue would go to a voluntary postal vote.

“What we say is that it’s not the government decision [to hold a postal vote] that needs to be unforeseen, it’s the expenditure,” she said, adding that, given a vote was an election promise, the expenditure was foreseen.

She also referred to a press release issued by Cormann on 9 August in which he called the postal-survey a plebiscite, indicating he viewed a voluntary survey and a compulsory plebiscite as similar. Richardson said this also diminished Cormann’s argument that the postal vote was unforeseen.

The case is expected to run for two days. On Wednesday, the court will hear from lawyers representing the government.

</s>A barrister challenging the validity of the Australian government’s postal vote on same-sex marriage has told the high court he will demonstrate “how unique and offensive it is that a personal opinion is being asked on a relationship of this kind”.

Over two days the court led by the chief justice, Susan Kiefel, will consider the legality of the government’s same-sex marriage postal vote.

Those challenging the survey argue the government acted inappropriately in allocating $122m to the Australian Bureau of Statistics to conduct the vote; that the question of same-sex marriage is not within the scope of statistics collected by the ABS; and that it was wrong to ask people to sign up to the electoral roll for the vote because the issue could not be considered an electoral matter.

The court only has to be convinced that the government exceeded its power in one of these areas to find the postal vote should not go ahead.

Ron Merkel QC, representing Tasmanian independent MP Andrew Wilkie, PFlag (Parents, Family and Friends of Lesbians and Gays), and Melbourne lesbian mother Felicity Marlowe, began on Tuesday by outlining the standing of his clients to challenge the vote.

He said Marlowe’s interest in the case went beyond the fact the outcome would affect her personally. She has three children with her same-sex partner.

“It’s putting to the public a vote on her family unit,” Merkel said. “We will demonstrate how unique and offensive it is that a personal opinion is being asked on a relationship of this kind.”

While none of the seven high court judges challenged Marlowe’s standing in the case, they spent some time questioning the involvement of Wilkie. Merkel told the court that by holding a postal vote parliament had been bypassed and Wilkie had been denied the opportunity to vote in parliament, and that he also had a special interest as one of the millions of Australians who would receive a postal survey.

Judge Virginia Bell queried: “A special interest that he shares with 16 million other Australians?”

Merkel replied that if Wilkie did not have standing to challenge the case, no one did.

Merkel also focused on the funds allocated by the government to the ABS to conduct the vote. The legislation was clear that the finance minister Mathias Cormann only had the power to unlock funds for a matter like the same-sex marriage postal survey when there was an urgent and unforeseen need to do so, he argued.

“You will look in vain for any circumstance that explains urgency outside of the government policy implementation,” Merkel said. “A date of 15 November is preferred but no reason is made for why that date should not be a month earlier or a month later.”

He described it as an “impermissible delegation of power to the finance minister”.

Over the next two days the court is hearing two challenges to the postal vote; one brought by Wilkie, Marlowe, and PFlag, and the other brought by Australian Marriage Equality and Greens senator Janet Rice. The cases are being heard together.

Hundreds of people attended the court for the hearing on Tuesday, with a second “overflow” room needed to accommodate the numbers. Attendees faced long lines to get inside the court.</s>The federal government’s same-sex marriage postal vote is lawful, the high court has found, clearing the way for the Australian Bureau of Statistics to send voting forms to 16 million Australians.

Those challenging the survey over two days of hearings at the high court in Melbourne argued the government acted inappropriately in allocating $122m to the Australian Bureau of Statistics to conduct the vote; that the question of same-sex marriage was not within the scope of statistics collected by the ABS; and that it was wrong to ask people to sign up to the electoral roll for the vote because the issue could not be considered an electoral matter.



The court only had to be convinced that the government exceeded its power in one of those areas to find the postal survey should not go ahead. Over Tuesday and Wednesday the court heard two separate challenges to the vote combined into one hearing.

Ron Merkel QC, representing Tasmanian independent MP Andrew Wilkie, PFlag (Parents, Family and Friends of Lesbians and Gays), and Melbourne lesbian mother Felicity Marlowe, said the postal ballot was “unique and offensive”. It was “putting to the public a vote on [Marlowe’s] family unit”.

Barrister Kathleen Foley also told the court on Tuesday that the ABS did not have the power to ask people for an opinion. But the question to be asked in the postal vote – “Should the law be changed to allow same-sex couples to marry?” – would do exactly that, she said.

But outlining the government’s response on Wednesday the solicitor general, Stephen Donaghue, told the court the survey “in no way” cast aspersions on Marlowe’s relationship or that of other same-sex couples. Rather it was the Marriage Act as it currently stood, along with third parties engaged in an anti same-sex marriage campaign, that called the validity of LGBTI relationships into question, he said.



“[The postal vote] will ask electors who receive it whether the law should be changed to allow same-sex couples to marry,” he told the high court in Melbourne, led by chief justice Susan Kiefel. “A consequence of the existing law imposes a distinction on same sex-couples and other couples. Asking whether the distinction should be removed doesn’t cast the aspersion being suggested.”

Senior counsel Kate Richardson, acting for the case brought before the court by Australian Marriage Equality and Senator Janet Rice for the Human Rights Law Centre, focused on the Appropriation Act. The act states that the finance minister – in this case Mathias Cormann – only has the power to unlock funds for a matter like the same-sex marriage postal survey in urgent and unforeseen circumstances. Cormann used the act to allocate $122m to the ABS to conduct the voluntary postal vote.

Richardson said Cormann knew there was a pre-election commitment to hold a compulsory plebiscite on same-sex marriage, which the government costed at $177m. She said cabinet made a decision that if the 2016 plebiscite bill failed to pass, the issue would go to a voluntary postal vote.

“What we say is that it’s not the government decision [to hold a postal vote] that needs to be unforeseen, it’s the expenditure,” she said, adding that, given a vote was an election promise, the expenditure was foreseen.

But Donaghue responded that the government was entitled to allocate the money under the Appropriations Act. He put it to the court that natural disasters and military interventions should not be the only matters that met the “urgent” criteria. Government policy could also be considered a matter of urgency, he said. But he also argued regardless of where the money to conduct the survey came from, the ABS had a legal obligation to comply with the government directive to conduct the survey, and the funding to do that could possibly be appropriated from elsewhere.

While opponents to the postal vote have argued that the fact that parliament could pass same-sex marriage without the need for an expensive postal survey removed the urgency, Donaghue said the relevant legislation did not expressly state “if it is possible to return to parliament one must do so”. The act should have been written more clearly if that was what it meant, he added.

Lawyers for the government also argued the plaintiffs had no grounds for bringing the government to court.</s>In Canberra, the question for Coalition MPs today is: what should happen if the high court knocks down the postal survey.

Liberal MP Craig Kelly told Guardian Australia, in that event, the compulsory plebiscite should “obviously go back to the Senate again”.



The first step is to wait for the high court result. Then, if necessary, to put it up in the Senate again. It would be in everyone’s interests to do that: people who want a free vote, would be able to say we’ve tried a plebiscite three times so let’s have a free vote; and those on the no side support our policy which is not to change the Marriage Act without the imprimatur of the Australian people.

Kelly believes the debate has “moved on” from when it was blocked in November and again in August, because advocates have shown they are prepared to campaign in the postal survey.

While Kelly won’t be drawn on what happens if, as expected, the Senate blocks the plebiscite bill again, Liberal MP Ian Goodenough has said the plebiscite policy should stay, into the next election.

Goodenough told ABC News Breakfast he does not want to pre-empt the high court decision because “our advice is that the postal survey will be carried as far as our advice is concerned”.

Liberal senator, Dean Smith, told ABC News on Tuesday there should be a “calm, measured response” if the high court rejects the postal survey “to give people a little bit of space to think about what their next considerations are”.

That sounds like he’s no fan of any rushed attempt to bring a bill and force him and other pro same-sex marriage Liberal MPs to show their hand about whether they are prepared to cross the floor.

There have been some changes in the environment since the party room had its discussion to pursue the postal survey - the most obvious of that is there has been, I would argue, a groundswell of support in favour of the yes campaign. But let’s not get ahead of ourselves - let’s respect the decision of the high court, whatever that decision is.</s>The fate of the Turnbull government’s postal survey on same-sex marriage hangs in the balance as the high court hears two challenges to its validity in Melbourne on Tuesday and Wednesday.

The high court has expedited hearings before the Australian Bureau of Statistics mails out survey forms on 12 September asking Australian electors if the law should be changed to allow couples of the same sex to marry.

The decision will either give the green light to the ABS survey which will deliver Australians’ judgment on marriage equality by 15 November or reject the voluntary postal vote that the Coalition adopted as a Plan B when the compulsory plebiscite was blocked by the Senate.

Independent MP and plaintiff Andrew Wilkie has said a decision could come as early as mid-week and he hopes if the challenge is successful the Turnbull government will accept that parliament should deal with marriage equality.

On Thursday Malcolm Turnbull refused to say what the government would do if the high court struck down the postal plebiscite because he was “confident the challenge to the postal vote on marriage … will not be successful”.

In August Turnbull said that the Coalition’s policy was not to change the marriage law unless Australians have had their say.

One challenge is brought by Australian Marriage Equality and Greens senator Janet Rice. The second is brought by Wilkie, lesbian mother Felicity Marlowe, and Parents and Friends of Lesbians and Gays (Pflag) Brisbane.

Both challenges argue that the government has no power to appropriate $122m from the finance minister’s special advance to pay for the postal survey because the expenditure was not urgent and unforeseen.

The compulsory plebiscite was voted down by the Senate in November. In March the immigration minister, Peter Dutton, backed a voluntary postal plebiscite as an alternative but it did not become Coalition policy until it was adopted by the cabinet and party room on 7 and 8 August.

Section 1(b) of the Appropriations Act allows the finance minister to make a special advance if he or she “is satisfied that there is an urgent need for expenditure, in the current year, that is not provided for … because the expenditure was unforeseen” before the budget in early May.

The plaintiffs note the Department of Finance then sought advice from the Attorney General’s Department for a postal plebiscite to be conducted by the Australian Electoral Commission and that the finance minister, Mathias Cormann, was aware of this alternative “from about March 2017 onwards”.

AME and Rice submit that expenditure for a postal survey was not unforeseen because it was “specifically contemplated” before the budget.

The government says that although it could foresee the need for “some facility” for Australians to express a view on same-sex marriage, Cormann was “unaware of any proposal for the ABS to conduct a survey on the issue” when the budget bill was introduced on 9 May.

The Wilkie challenge submits the expenditure was not “urgent” because marriage equality had been controversial for many years and “there was no reason provided as to why the postal plebiscite had to be conducted from 12 September 2017”.

The government submissions argue that the allocation of $122m was urgent because it was necessary to achieve government policy within the time frame the government judges necessary.

The Wilkie challenge also argues the ABS is not authorised to conduct the postal survey because it is a collection of opinions on same-sex marriage, not “statistical information”.

The government submits that “statistical information” extends to “data of any kind”, and there is nothing to prevent the ABS counting how many people have a particular opinion.

Constitutional law expert and dean of the University of NSW law school, George Williams, has said the government has an “uphill battle” in the case.

On Wednesday he told the National Press Club that it was “hard … to make out” that spending on the postal survey was urgent and unforeseen. “Urgency, perhaps, but urgency because of the government’s own political priorities but not for other reasons. Unforeseen? We have been debating this for some time.”

Williams said it was “unlikely the court will permit the government a back door” to the clear line of authority in the chaplains program cases – that the federal government requires parliamentary approval to spend taxpayer money in almost all circumstances.

On Monday, Wilkie told Sky News he was “hopeful the court will see merit in our argument; I’m hopeful we’ll win in court”.

“I’m hopeful then there’ll be enough people in the government to see the sense in just quickly bringing [same-sex marriage] on for debate and decision in the parliament.”

Wilkie said the case will be an important precedent on the power of the executive, and whether the government can spend $122m of taxpayers funds without specific parliamentary approval.

Wilkie said the high court “clearly understands the urgency of this matter … they know the mailout happens next week … so I’m hopeful that they will decide on the matter very, very quickly, perhaps as early as the middle of this week”.</s>The fate of the Federal Government's plan for a voluntary postal survey on same-sex marriage hangs in the balance today after opponents took the issue to the High Court in Melbourne.

Led by led by chief justice Susan Kiefel, the full bench of the High Court sat in Melbourne on Tuesday to hear two challenges to the Government's same-sex marriage postal survey just a week before forms are set to be sent to households across the nation.

Federal Independent MP Andrew Wilkie, who is leading one of the challenges, has said he is optimistic the High Court will see the urgency in ruling on whether the same-sex marriage postal survey is legal.

Wilkie's lawyers argue the Government doesn't have the power to give the Bureau of Statistics $122 million to run the survey.

"If we succeed in the High Court, there will be enormous pressure on the Government to stop the political game-playing, do their jobs and let MPs vote on marriage equality, Wilkie said ahead of the court appearance on Tuesday.

"Let's not forget that a postal vote wasn't necessary when the Howard Government changed the Marriage Act in 2004 to limit marriage to between a man and a woman and it's not necessary now."

The other case, led by Australians For Marriage Equality, are arguing along the lines of the cost of the survey, the role of the ABS and that Australian Electoral Commission should not be sharing the electoral roll for an opinion poll.

The ABS doesn't normally collect public opinion, instead collecting facts and statistics for analysis.

Ron Merkel QC is representing Melbourne mother Felicity Marlowe as well as Wilkie.

"It's putting to the public a vote on her family unit," Merkel is reported to have told the court.

"We will demonstrate how unique and offensive it is that a personal opinion is being asked on a relationship of this kind."

"We can have marriage equality in the next fortnight, but if we have to be put through this postal vote plebiscite, we are here because we have to make sure it is a legally viable process," Australian Marriage Equality advocate Alex Greenwich said on Tuesday.

"We hope the matter will go back to Parliament and we hope that Federal Parliament will stop delaying, stop dragging this out and finally deliver on the settled will of the Australian people to allow all Australians to marry the person that they love in the country that they love."

The Coalition promised to give Australians a say on whether same-sex marriage should be legal, but its plan was twice rejected by the Senate.

The Government resolved to have a voluntary postal survey, a move that sparked anger from same-sex marriage supporters.

If the challenge is unsuccessful the survey will proceed as planned and advocates will ramp up the case for the "yes" vote.

'Yes' advocates have been warning the so-called "respectful debate" touted by the PM could turn ugly. Indeed, vile homophobic posters, pamphlets and other materials have popped up in Melbourne and Sydney.

Fairfax An anti same sex marriage poster found in Sydney.

If the challenge is successful, the path is less clear.

Labor says there is no case to spend $122 million on a survey. Opposition Leader Bill Shorten said if the High Court comes down on the side of the postal survey, Labor will campaign for a 'yes' vote.

"We say to LGBTI Australians you are not on your own. This is a weak policy by a weak Prime Minister," Shorten said on Tuesday.

The Greens have said they will push for legislation to be introduced next week for a free vote.

The court is expected to continue hearings on Wednesday, when it will hear submissions from the Commonwealth.</s>The High Court will decide on Thursday whether the controversial same-sex marriage postal plebiscite will go ahead.

With ballot papers printed and ready to be sent out next week, the Turnbull government has vigorously rejected claims that the postal vote is unlawful and ought to be struck out.

The claims were made earlier this week as part of a High Court legal challenge brought forward by two loosely aligned groups, comprising marriage equality advocates, independent MP Andrew Wilkie, and Greens Senator Janet Rice.

However, speaking on Wednesday during the final day of the hearing, government Solicitor-general Stephen Donaghue argued that the plaintiffs – some of whom are part of same sex couples – did not have the legal standing to mount a court challenge, and dismissed their earlier concerns that the postal vote would cast aspersions on their relationships.

"A consequence of the existing law is a distinction on same-sex couples and other couples. But asking (in a postal vote) whether the distinction should be removed doesn't cast the aspersion being suggested," he said.

The opponents' case centred on a number of claims: that the Australian Bureau of Statistics did not have authority to collect the kind of information requested of it; that the postal plebiscite did not fall under the banner of "ordinary annual government services"; and that the Coalition did not have the power to spend $122 million on the survey without parliamentary approval.

At the heart of the challenge was the claim that Finance Minister Mathias Cormann had inappropriately funded the postal vote through a special contingency pool that sets aside money for matters that are "urgent" and "unforseen".

Opponents had argued that Mr Cormann had not met the criteria, in part because Coalition ministers had been discussing "alternative measures" as early as March to deliver on the promise of a plebiscite.

But Mr Donaghue argued that while a compulsory plebiscite on marriage equality had been on the cards, a voluntary postal survey conducted specifically by the Australian Bureau of Statistics was not decided by the cabinet until last month – and therefore had not been foreseen at all.

He said governments also had the right to decide how to address issues of national importance, and if these matters fell outside the budget cycle, the funding pool was there to give the minister a mechanism to finance them.

"It is a central function of the executive government to decide and prioritise between the issues facing the nation," he said.

"The budget is not the only time the government is able to make judgements or make priorities in relation to a need for expenditure."

While High Court judgements can often take weeks or months, Chief Justice Susan Kiefel announced on Wednesday afternoon that a snap decision would be made on Thursday at 2.15pm – coinciding with federal question time.

If the High Court rules in favour of the challengers, the postal vote – which was due to start on September 12 – will not go ahead as planned.

In turn, Prime Minister Malcolm Turnbull will once again come under renewed pressure to grant a conscience vote in a bid to settle the matter, at the time when the composition of the parliament is under a cloud due to numerous members facing claims of dual citizenship.

However if it succeeds, the postal survey will take place with a result due on November 15.</s>CANBERRA -- The full bench of the High Court has begun hearing a combined legal challenge to the non-compulsory, non-binding same-sex marriage postal vote.

According the challengers, two High Court cases will be working 'side-by-side, against the Government, to take a stand' on the issue of marriage equality over the next two days.

At stake is whether the postal survey should go ahead under the charge of the Australian Bureau of Statistics (ABS). At this stage, the ballots are still due to be sent to enrolled voters on the electoral roll on September 12.

But the case hinges on whether the Turnbull Government, thwarted in its earlier attempt to hold a plebiscite popular vote, was allowed to draw an additional $122 million to run the survey, under Section 10 of the Appropriations Act, without passing legislation in the federal parliament.

The basic question is, was it constitutional for the Finance Minister to allocate taxpayer's money for a postal survey.

The ability of the ABS to run the survey will also be challenged. That is, did the Treasurer Scott Morrison have the power to direct the Bureau to run the same-sex marriage question.

Government lawyers will be arguing the government is entitled to allocate money from the contingency fund. The key here is the acting Special Minister of State Mathias Cormann describing the postal vote as an "unforeseen item of expenditure".

Politically, the Turnbull Government wants the legitimacy of a successful popular vote before holding a free vote in parliament designed to change the marriage act to allow legal same-sex unions. It is also held up by the Government has holding true to an election promise to hold a popular vote on the issue.

As a postal survey challenger, Andrew Wilkie, believes there is a strong case to throw out the postal survey. And he predicts there may be a result by the end of the week, but the timing is ultimately up to the High Court.

"Lawyers are very cautious people, and they are careful in what they say," he told ABC radio on Tuesday. "But they are obviously of the view that there is enough merit in our argument to take it to the Court."

"We wouldn't be doing this if we didn't think we had a good case."

The Government believes it has a strong case too and it is relying on advice from the Solicitor-General.

"The Government is very confident, based on the advice, that what we're doing is consistent with all of the Constitutional and legal requirements," Minister Cormann told reporters in Canberra.

The plaintiff's side is being heard on Tuesday and the Government's case will be heard on Wednesday.

As for what happens after the result, if the challenge is unsuccessful the survey will proceed as planned and advocates will ramp up the case for the "yes" vote.

If the challenge is successful, the path is less clear, but marriage equality advocates will continue the growing push for a conscience vote in the Federal Parliament.</s>Private citizens in same-sex relationships “have no right to challenge” the government’s allocation of funding for a postal survey on their right to marry, the high court has been told.

The solicitor general, Stephen Donaghue, acting for the government, was responding to the case put forward against the postal vote by Ron Merkel QC, who is representing Melbourne lesbian mother Felicity Marlowe. Merkel told the court that it was “unique and offensive” that the public could vote on Marlowe’s family unit, and that was why she had taken the government to court.

But outlining the government’s response on Wednesday, Donaghue told the court the survey “in no way” cast aspersions on Marlowe’s relationship or that of other same-sex couples. Rather it was the Marriage Act as it currently stood, along with third parties engaged in an anti same-sex marriage campaign, that called the validity of LGBTI relationships into question, he said.



“[The postal vote] will ask electors who receive it whether the law should be changed to allow same-sex couples to marry,” he told the high court in Melbourne, led by chief justice Susan Kiefel. “A consequence of the existing law imposes a distinction on same-sex couples and other couples. Asking whether the distinction should be removed doesn’t cast the aspersion being suggested.”

Justice Geoffrey Nettle put it to Donaghue that LGBTI people might be “so offended by receipt of the [postal vote] document by reason that it occurs to them others are being able to pass judgment on their sexuality”.

Donaghue insisted the postal vote did no such thing.

Wednesday marked the final day of the two-day hearing challenging the validity of the federal government’s intended postal vote on same-sex marriage. On Tuesday, the court heard from lawyers representing the two challenges to the survey. The two challenges, being heard together, argue the government acted inappropriately in allocating $122m to the Australian Bureau of Statistics to conduct the vote; that the question of same-sex marriage is not within the scope of statistics collected by the bureau; and that it was wrong to ask people to sign up to the electoral roll for the vote because the issue could not be considered an electoral matter.

Merkel told the court that the law made it clear that funding such as that allocated to the postal vote could only be allocated in “urgent and unforeseen” circumstances. But the postal survey was neither urgent nor unforeseen, Merkel and senior counsel Kate Richardson told the court.

But Donaghue put it to the court that natural disasters and military interventions should not be the only matters that met the “urgent” criteria. Government policy could also be considered a matter of urgency, he said. While opponents to the postal vote have argued that the fact that parliament could pass same-sex marriage without the need for an expensive postal survey removed the urgency, Donaghue said the relevant legislation did not expressly state “if it is possible to return to parliament one must do so”. The act should have been written more clearly if that was what it meant, he added.

He then cited cases where urgent funding had been made available by the government, after not being accounted for in the budget, for infrastructure such as arts centres and sports stadiums. If those kinds of comparatively small projects were considered urgent, then a $122m postal-survey on same-sex marriage must be considered urgent as well, Donaghue said.

The case will wrap up on Tuesday afternoon. While the high court can take weeks to deliver a decision, it is expected the court will in this case treat the matter urgently and hand down its findings by the end of next week at the latest.

Last week the prime minister, Malcolm Turnbull, refused to say what the government would do if the high court struck down the postal plebiscite because he was “confident the challenge to the postal vote on marriage … will not be successful”.</s>"A consequence of the existing law is a distinction on same-sex couples and other couples. But asking (in a postal vote) whether the distinction should be removed doesn't cast the aspersion being suggested," he said.

The opponents' case centred on a number of claims: that the Australian Bureau of Statistics did not have authority to collect the kind of information requested of it; that the postal plebiscite did not fall under the banner of "ordinary annual government services"; and that the Coalition did not have the power to spend $122 million on the survey without parliamentary approval.

At the heart of the challenge was the claim that Finance Minister Mathias Cormann had inappropriately funded the postal vote through a special contingency pool that sets aside money for matters that are "urgent" and "unforseen".

Opponents had argued that Mr Cormann had not met the criteria, in part because Coalition ministers had been discussing "alternative measures" as early as March to deliver on the promise of a plebiscite.

But Mr Donaghue argued that while a compulsory plebiscite on marriage equality had been on the cards, a voluntary postal survey conducted specifically by the Australian Bureau of Statistics was not decided by the cabinet until last month – and therefore had not been foreseen at all.

He said governments also had the right to decide how to address issues of national importance, and if these matters fell outside the budget cycle, the funding pool was there to give the minister a mechanism to finance them.

"It is a central function of the executive government to decide and prioritise between the issues facing the nation," he said.

"The budget is not the only time the government is able to make judgements or make priorities in relation to a need for expenditure."

While High Court judgements can often take weeks or months, Chief Justice Susan Kiefel announced on Wednesday afternoon that a snap decision would be made on Thursday at 2.15pm – coinciding with federal question time.

If the High Court rules in favour of the challengers, the postal vote – which was due to start on September 12 – will not go ahead as planned.

In turn, Prime Minister Malcolm Turnbull will once again come under renewed pressure to grant a conscience vote in a bid to settle the matter, at the time when the composition of the parliament is under a cloud due to numerous members facing claims of dual citizenship.

However if it succeeds, the postal survey will take place with a result due on November 15.
The High Court of Australia receives a complaint against the Australian Marriage Law Postal Survey citing the postal survey as "unique and offensive."