Marriage case has broader consequences

Paul Osborne, AAP Senior Political Writer

It's one paragraph but it says a lot about the Turnbull government.

"It is not correct to characterise the activity as a vote. Among the defining characteristics of a vote, as understood in Australia, are that it has immediate consequences ... "

The quote comes from the solicitor-general's submission to the High Court case in which marriage equality advocates are challenging the ability of the government to run what is officially known as the Australian Marriage Law Postal Survey.

The case will be heard next week, as federal parliament sits, and will not only determine the fate of the survey but roll the dice on Malcolm Turnbull's leadership.

The paragraph is telling, in that it says the survey has "no immediate consequences".

Mr Turnbull and cabinet ministers have said on many occasions the "consequence" of a majority yes vote would be to bring a private member's bill to parliament.

The bill would be brought on as "immediately" as possible - that is, the final sitting fortnight of the year - and put to a vote by the end of 2017.

If this is not the case, voters would be entitled to ask what is the point of taking part in the survey and why spend $122 million on something the government has no intention of acting upon?

Labor and the Greens have been asked the same question for months.

It may become a moot point if the High Court accepts the argument that the government does not have the proper authority to spend the money on the survey and/or it is unconstitutional for the Australian Bureau of Statistics to run something ordinarily left to the fine staff at the Australian Electoral Commission.

Constitutional law expert George Williams believes the government will have an "uphill battle" to defeat the challenge to the survey.

He says a series of High Court decisions has found the government generally needs parliamentary approval to spend taxpayers' money.

Having been unable to get the compulsory plebiscite through the Senate, the cabinet came up with the novel idea of making an "advance" to the finance minister under a bill introduced to parliament on budget night.

That bill allows the finance minister to spend up to $295 million if there is an urgent and unforeseen need.

Evidence presented to a parliamentary committee in March revealed the attorney-general's department had been approached for legal advice on conducting a postal ballot.

However, Finance Minister Mathias Cormann argues in the court submission that at the time the bill was introduced to parliament he was "unaware of any proposal for the ABS to conduct a survey on the issue of same-sex marriage and it was not government policy to do so".

The prime minister would need to come up with a Plan C if the court quashes the survey.

He's boxed in by an election promise - and pledge to conservatives in the coalition party room - not to change marriage laws without Australians having their say.

If the PM decides to put the issue on the shelf for this term, there's the prospect of Liberal backbenchers scheming to bring on a private member's bill.

If Turnbull explicitly or implicitly allows the private bill to go ahead, there would be all-out war between the anti-same sex marriage coalition MPs and their moderate colleagues.

The only winner from this bloodletting would be Labor.

Or the prime minister could seek to bring in a bill to "fix" any problems identified by the High Court decision and run the gauntlet of the Senate to pass it.

However, ministers such as Peter Dutton and Cormann are unlikely to have the patience for a plan C, having come up with plan B.

In any case, a second issue is likely to further strain the government before the dust settles on same-sex marriage - the citizenship and eligibility to parliament of seven MPs, including two cabinet ministers and a stood-aside minister.

Former prime minister John Howard had some words of reassurance when asked about the swirling political vortex on Wednesday.

"Let's just draw a deep breath ... I don't think it's a crisis for Australian democracy," he said.