High Court judgement finds same-sex marriage postal survey counts as ‘statistics’

Finance Minister Mathias Cormann did have the legal authority to set aside $122 million for the postal survey on same-sex marriage, the High Court decided in a judgement earlier this month.



The court also rejected the argument the Australian Bureau of Statistics (ABS) was not the right agency to conduct the poll. It found the opinions on same-sex marriage did count as “statistical information”.

The court published a summary of its reasoning on Thursday, several weeks after the judgement was handed down. The somewhat unusual process was justified by the need to reach a quick decision so the ABS could begin posting survey forms.

The judge concluded Senator Cormann had the right to allocate up to $295 million under the Appropriation Act. 

One element of the challenge focused on the requirement for the spending to be “unforeseen”, and argued the government had created the need for the postal survey itself by imposing its own deadline. 

But the court found it was up to the government to decide what was “unforeseen”.

“The Court held that whether expenditure was unforeseen was a matter for the Minister’s satisfaction. Further, the need for the expenditure did not have to arise from a source external to Government,” the reasoning reads.

Another element of the challenge argued the survey was not statistical research and so was outside the remit of the ABS.


But the court rejected that argument too.

“The Court held that the Statistics Direction was valid on the basis that the information to be collected by the Australian Statistician was ‘statistical information’, that the information was ‘in relation to’ matters prescribed in the Census and Statistics Regulation 2016.”