Wilkie & Ors v The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance Mathias Cormann & Anor

The High Court of Australia considered two applications for special leave to appeal concerning the validity of the postal survey on same-sex marriage. The applicants in the first proceeding, Wilkie & Ors, sought to challenge the legality of the survey, while the applicants in the second proceeding, Australian Marriage Equality Ltd & Anor, sought to challenge the validity of the appropriation of funds for the survey. The respondents were the Commonwealth of Australia and various ministers.

The central legal issue before the Court was whether the Commonwealth had the constitutional power to conduct a voluntary postal survey on the question of same-sex marriage without parliamentary approval. Specifically, the applicants argued that the executive government lacked the constitutional authority to expend public funds on such a survey without specific legislative authorisation, and that the survey itself was beyond the scope of the executive power.

The Court, in granting special leave to appeal and then hearing the appeals together, ultimately dismissed the applications. The majority reasoned that the executive government possessed the constitutional power to expend public funds for purposes not specifically authorised by Parliament, provided those purposes were not unlawful and were reasonably incidental to the execution of the executive power. The Court found that the postal survey, while not directly mandated by legislation, fell within the scope of the executive's power to manage the affairs of the Commonwealth and to inform itself on matters of public importance. The Court also held that the survey itself did not infringe upon the legislative power of Parliament.

The applications for special leave to appeal were dismissed, and the appeals were dismissed.