EXPLAINER: What does the High Court challenge mean for marriage equality?

Previous polls show most Australians want marriage equality, but it’s how we can get there that is dividing many.

After the Federal Government twice failed to gain support for an election poll-style non-binding plebiscite, it went ahead with plans for a postal “survey” of Australian’s views on same-sex marriage. However, like the proposed plebiscite, it’s going to be costly and not everyone is happy about it, which brings us to the High Court of Australia.

On Tuesday, a hearing began in the High Court and if you’re a bit baffled about why, then read on, because we’re going to attempt to break this complicated issue down.

What’s happening in the High Court?

Unimpressed the government is wasting $122 million on a decision they think parliamentarians should be making themselves, two groups have legally challenged the Federal Government on their postal survey.

One group includes Australian Marriage Equality and Greens Senator Janet Rice. The second is made up of MP Andrew Wilkie; Shelley Argent from Parents, Family and Friends of Lesbians and Gays; and Victorian mother-of-three Felicity Marlowe.

While this now-united group’s motivation for the challenge is mainly to avoid a ‘No’ campaign they say could be harmful to the mental health of LGBTI people, their grounds for challenging the Federal Government are largely technical.

In order to pay for the postal vote, the Commonwealth will draw from a funding pool set aside for “urgent” and “unforeseen” matters – which the government says can be used to pay for the survey without parliamentary approval.


The group challenging the government is expected to argue a postal survey on same-sex marriage is not urgent or unforeseen.

So what happens if the challenge wins?

If the challenge wins the postal survey will not go ahead as planned on September 12.

And then.. who knows? Same-sex marriage supporters like Australian Marriage Equality spokesman Alex Greenwich are optimistic this would put pressure on the Coalition to finally allow a free-vote in Parliament – that is, pollies on either side could vote on whether they think same sex marriage should be legal. It is thought that if a conscience vote was allowed, “yes” would have the numbers and marriage equality would soon follow.

“The number is there in a full free vote,” Greenwich told The Sydney Morning Herald on Tuesday.

“The legislation is there thanks to Senator Dean Smith. We can have marriage equality in the next fortnight.”

The Bill he’s referring to is one the Liberal senator drafted which, if introduced, would allow MPs to vote on same-sex marriage.  The Greens have said they wish for this bill to be introduced next week.

When will we know the outcome?

The hearing, which began on Tuesday, was expected to go for two days, so could be over by Wednesday – though a verdict may or may not be given.

Listen: This is how it should have gone down.