The government will argue it has properly used laws to make an advance payment to the finance minister to fund the same-sex marriage postal survey.
Marriage equality advocates have gone before the full bench of the High Court to try to stop the voluntary postal survey, arguing the government should not have bypassed parliament in funding it.
The government obtained the $122 million by using laws to make an advance payment to the finance minister in circumstances where there is an urgent need for spending and the situation was unforeseen.
Commonwealth solicitor-general Dr Stephen Donaghue is expected to outline the government’s position before the full bench of the High Court on Wednesday.
Rather than an appropriation that would require legislation, the government’s submission argued the minister’s advance merely earmarks money for a particular entity and a particular purpose.
As well, the government argues the evaluative judgement as to whether something is urgent or unforeseen lies with the minister.
The two groups of advocates challenging the survey argue the spending was neither urgent nor unforeseen.
The voluntary survey was Plan B after the Senate blocked the compulsory plebiscite promised by the coalition at the 2016 election.
Australian Marriage Equality’s barrister Katherine Richardson SC said the government’s policy was to give the people of Australia a say on the question of same-sex marriage by a plebiscite.
That was backed by an affidavit from Finance Minister Mathias Cormann, she said.
“It was not just a policy of compulsory plebiscite or nothing at all,” she told the court on Tuesday.
Ms Richardson said the minister knew his colleagues were considering an alternative means of a plebiscite before the Senate knocked back the compulsory plebiscite for a second time in August.
Senator Cormann’s affidavit stated that he did not foresee the government’s August decision to have the Australian Bureau of Statistics conduct the postal survey.
Ms Richardson argued the minister erred in using the advance from funds that can be used without parliamentary approval.
“We say that it is plain that the minister has defined what must be unforeseen narrowly and erroneously, that is, he has focused on the particular body that might incur the expenditure, the ABS,” she said.
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