All eyes will be on the High Court in Melbourne this afternoon as it delivers its result in the challenge to the Federal Government’s plan for a voluntary same-sex marriage survey.
For the Government, an election promise lies in the balance, a promise it has so far been unable to deliver because of a hostile reception in the Senate to its plans for a plebiscite on the issue.
The challengers would prefer the issue was decided by the Parliament.
And for many in the court this week, as the lawyers debated the meaning of the words “urgency” and “foreseeability”, there was a deeply personal dimension.
That includes one of the people directly involved in one of the two challenges — Felicity Marlowe.
Ahead of the hearing, Ms Marlowe told journalists she and her lesbian partner of 17 years had three children.
The decision is a double-edged sword for families like Ms Marlowe’s.
The polls show strong support for same-sex marriage — a result that would very likely show up in the survey, ultimately delivering the desired laws.
But Ms Marlowe said it was a high price to pay.
“In just the four short weeks since the plebiscite was announced, families like mine and trans and gender-diverse young people have already, without the campaign having even started, been subjected to vile hate and abuse,” she said.
“I am deeply concerned about the long-term impact of any eight-week public campaign.”
Emotion of issue largely lacking in High Court hearing
The same-sex marriage debate has long been a social flashpoint in Australia, involving deep personal beliefs.
But little of that was evident in the High Court challenge.
Instead the challengers took on the Government’s plans to fund the survey using a contingency fund set aside for “urgent” and “unforeseen” items.
Challengers questioned whether the survey met either of those criteria.
The court has also been asked to rule on whether the Government was breaching the constitution by not formally asking the Parliament for the $122 million for the plan.
It will have to rule on whether the Australian Bureau of Statistics (ABS) and the Australian Electoral Commission (AEC) can be legally required to run a survey of this type.
The Government has already started printing the material for the survey, so the ink can dry in time, in case the High Court clears the way for survey to start next Tuesday.
During the two-day hearing it was impossible to know what way the court will jump.
Tough questioning by the judges of lawyers engaged in challenging the survey suggested a lack of sympathy to the argument, but at least one of the judges appeared deeply concerned about the legality of spending money not appropriated from Parliament.
One thing that can be said is that the High Court has in recent times been willing to draw a line on Government’s spending money that has not been properly appropriated from the Parliament, as it did in the school chaplaincy case five years ago.