Opinions will continue to differ on same-sex marriage

In the days immediately preceding the recent urgent hearing by the High Court of Australia of the challenge to the legality of the Turnbull Government's postal survey on same-sex marriage ("the survey"), some of the media pundits were saying that the challenge was so obviously well-founded that the contest was all over bar the shouting. To their astonishment, on 7 September the High Court unanimously dismissed the two cases with costs, and announced that it will publish its reasons at a subsequent (Wilkie v The Commonwealth of Australia; Australian Marriage Equality Ltd v Minister for Finance) date.

The air of expectation and overstatement in sections of the media was exemplified when the Guardian reported that leading counsel in the Wilkie case had submitted to the High Court that the proposed survey was "unique and offensive". The transcript records that he said "unique and odd". Apart from the fact that predicting the outcome of any High Court case is uniquely risky, the pundits preferred wishful thinking to analysis of the parties' cases as exposed in their detailed written submissions – all available on the court's web site. The oral hearing of a High Court case does not stand alone. It is the culmination of the process which is anchored in the written submissions. The justices remain open to persuasion by the logical force of oral advocacy, but it is a rare thing for some decisive issue or new argument to arise for the first time in the course of oral argument.

The adverse commentary on the Court's formal orders is idle chit-chat. That said, the presentation of the plaintiffs' challenge is, itself, instructive at least for the following reasons.

First, it is likely that the Court's reasons will elucidate the jurisprudence of both the fundamental principle, given expression in Part V of the Australian Constitution, that the Commonwealth Parliament not the Executive Government controls the expenditure of the public's money, and of the nature and extent of the power of the Parliament pursuant to s 51(xi) of the Constitution to make laws with respect to census and statistics.

Secondly, the failed challenge to the legality of the survey is a further demonstration of how free speech generally, and freedom of religious belief, expression and practice in particular, are now firmly established at the centre of ongoing political controversy in Australia. The challenge has much to say about the attitude of some supporters of same-sex marriage to how the merits of the proposed amendment of the Commonwealth Marriage Act 1961 should be publicly debated (if at all). There has been an air of artificiality surrounding the controversy arising from the Senate's rejection of the Plebiscite (Same-Sex Marriage) Bill 2016. Some opponents of that Bill have insisted that there has been enough or too much debate. That conceited refrain is part of the reason why the controversy will not go away.

In the High Court, the Turnbull Government took the preliminary objection that the plaintiffs lacked "standing" to institute the challenge - that is to say, they had no sufficient legal interest in the subject matter of the controversy. The High Court has dealt with this issue of principle more than once in recent years. Lawyers and others who follow the High Court closely would not be surprised that it decided that it was not necessary for it to determine that issue.

In Mr Wilkie's case the second plaintiff, Ms Felicity Jennifer Marlowe, contended that she had standing both as an elector and by reason of her status as a party to a same-sex relationship family with children. As an elector, she would receive material for the survey in the mail and she contended that she was more affected than other people because that receipt and the ensuing public debate would be "involuntary" and would be "distressing" for her. More particularly, "the process for, and outcome of, [the survey] will also determine, in the view of electors, the legitimacy of her family unit and [her] suitability and [that of] her partner to be persons married under Australian law."

During the course of oral argument, Chief Justice Kiefel reminded leading counsel for the plaintiffs in Wilkie that the existing law of standing dealt with the question of whether a person's emotional concern was a sufficient interest and asked, "How do you distinguish this plaintiff's position in that regard?" The gist of counsel's response was that the mere fact that the government was proposing to conduct the survey involved casting a kind of aspersion on Ms Marlowe, her family unit and the personal relationship which was unique.

Now is not the time to subject that bald assertion to close legal analysis. However, on its face, it is consistent with the proposition that no fair-minded person, could rationally or honestly or "respectfully" advance a case in opposition to the proposed change to the Commonwealth Marriage Act 1961 since to do so could be characterised as a group libel.

The plaintiffs' opposition to the survey was, in part, based on an argument that it was unlawful because, properly interpreted, the Parliament's power to make laws with respect to census and statistics did not extend to laws enabling measurement of popular "opinion". Again, that assessment seems to rest on an unstated premise that government measurement of popular opinion (generally or on selected questions) had been rightly deprecated by the framers of the Constitution.

Thirdly, the plaintiffs' loss in the High Court has, regrettably, produced a win for the cause of "hate speech" censorship in the form of the Parliament's swift passage of s 15 of the Marriage Law Survey (Additional Safeguards) Act 2017 (albeit a provision that is subject to the Act's "sunset" clause). The label "hate speech" means no more than the expression of whatever idea the labeller intensely dislikes and wishes to suppress. Whatever it covers, there has been plenty of it recently at the extremities of the spectrum of public opinion about same-sex marriage.

One of the objects of the Safeguards Act is to promote "proper and respectful public comments on marriage law survey matter". But respect for what? One attempt to contribute, "respectfully", to calm, informed public debate on same-sex marriage was the document Don't Mess With Marriage published by the Australian Catholic Bishops Conference in late 2015. Some people were (and remain) outraged that the bishops had dared to disseminate the Church's teaching to its adherents. That reaction included the short-lived spectacle of an attempt to obtain an adjudication that the Archbishop of Hobart had contravened the Tasmanian Anti-Discrimination Act by distributing that document.

Section 15 of the Safeguards Act contains a civil penalty provision that a person (the first person) "must not vilify, intimidate or threaten to cause harm to another person or persons" because (a) the other person or persons have expressed or hold a view in relation to the marriage law survey question, (b) the first person believes that the other person or persons hold a view in relation to the marriage law survey question, or (c) the religious conviction, sexual orientation, gender identity or intersex status of the other person or persons.

When consideration is given to the vague terms of the objects of the Safeguards Act, of the civil prohibition in s 15, and of the defences set out in the Act, and the implied constitutional freedom of communication on government and political matters which restrains the Parliament law-making powers, it is anybody's guess what the law permits or prohibits.

For anyone contemplating whether to speak her or his mind about the survey or to publish the opinion of someone else about the survey, s 15 will have had its intended censoring effect if individuals or corporations play it safe and remain silent. At the same time, given the efforts taken to prevent the survey occurring and the "hate speech" directed at supporters of the NO case, there may be some electors who are inclined to vote YES, but who don't like being told what it is they must think or believe or say about the question posed for their consideration or that YES is the only legitimate or "respectful" or reasonable way to express their opinion.