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A political win, but the devil is in the detail

By Lorraine Finlay - posted Monday, 11 September 2017


There is no denying that the High Court decision to allow the same-sex marriage postal survey is a big win for the Turnbull Government. In fact, in terms of legal wins this is just about as big as it gets. Not only did the High Court reject the two challenges against the postal survey, but the decision was unanimous and the government was awarded costs. It was a significant – and much-needed – political victory for a Prime Minister under enormous pressure.

In addition to the immediate win, the High Court decision also has some other promising signs for the Government. In the lead-up to the hearings earlier this week many constitutional lawyers and academics (myself included) expressed doubts about the legality of the postal survey and thought there was a realistic chance that the High Court might strike it down. Many of the same people (again, myself included) have also expressed doubts about whether the Turnbull Government will survive the upcoming dual citizenship referrals with their entire parliamentary team (and, more importantly, their slim parliamentary majority) intact.

From the beginning the Federal Attorney-General expressed confidence in the advice of the Solicitor-General that the postal survey was legal. The Prime Minister has similarly expressed absolute confidence in the Solicitor-General's advice that the High Court will find that the Deputy Prime Minister is eligible to sit in Parliament. The stand-out performance of the Solicitor-General during the postal survey hearings and the unanimous decision of the High Court effectively proving his earlier advice correct, must give both Malcolm Turnbull and George Brandis a small boost of confidence ahead of the upcoming dual citizenship hearings.

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But the longer term legal implications of this short-term political victory might prove more troubling. We don't yet have the reasons for the postal survey decision, so any analysis at this point is limited to the decision itself and what occurred during the hearings. The High Court decision seems, however, to be moving in the opposite direction to a series of earlier decisions that placed increased limits on Executive power and provided for enhanced parliamentary oversight of government spending. A key argument in the postal survey case was that it was unlawful for the Executive to proceed with the postal survey without a parliamentary appropriation to approve the specific expenditure, and that the direction to allocate $122 million from the Advance to the Finance Minister that is provided for circumstances in which there "is an urgent need for expenditure" was invalid. The High Court unanimously dismissed both arguments.

We now know that 'urgency' is a relative concept, and that the Advance to the Finance Minister is apparently broad enough to authorise both postal surveys and arts centres. The 'urgency' in both situations appeared to have less to do with any temporal definition, and perhaps more to do with the urgent need for the government of the day to shore up its own political support.

For anybody who believes in conservative economic management there is a clear danger in this approach. Increasing the ability of the Executive to spend money without requiring the prior authorisation of Parliament might seem like a good idea when your team is in government and they are facing both a wafer-thin majority and an obstructionist Senate. But it is always fraught with danger. Reducing parliamentary scrutiny and accountability does not lead to better government, better policy outcomes, or better financial management. In fact, it does precisely the opposite, by increasing the opportunity for wasteful spending that focuses on short-term political consequences rather than longer-term taxpayer benefit.

Until we see the actual reasoning of the High Court, fiscal conservatives won't know whether the postal survey case represents a small backwards step or a more substantial shift away from parliamentary oversight. While the decision is clearly a short-term political victory for the Turnbull Government, in the longer-term it may prove to be a significant own-goal for a Liberal Party that still claims to believe in fiscal responsibility and limited government.

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About the Author

Lorraine Finlay is a Law Lecturer at Murdoch University, lecturing in constitutional law and international human rights. She is also a former President of the Liberal Women’s Council (WA).

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