Wilkie v The Commonwealth

The High Court of Australia considered the validity of an appropriation of moneys from the Consolidated Revenue Fund to fund a postal survey on same-sex marriage. The plaintiffs, including a Member of Parliament, a Senator, and an elector, sought declarations and injunctions to prevent the expenditure. The dispute centred on the construction and application of section 10 of the *Appropriation Act (No 1) 2017-2018* (Cth), which provided for an "Advance to the Finance Minister," and the validity of a direction issued by the Treasurer to the Australian Statistician under the *Census and Statistics Act 1905* (Cth).

The Court was required to determine whether section 10 of the *Appropriation Act (No 1) 2017-2018* was invalid, and consequently, whether the appropriation for the postal survey was lawful. Specifically, the Court had to consider whether the Finance Minister's determination under section 10 was authorised, whether the Minister had satisfied the statutory preconditions for making such a determination, and whether the expenditure for the postal survey fell within the description of "ordinary annual services of the Government" as contemplated by the Act. Additionally, the Court examined whether the Treasurer's direction to the Australian Statistician exceeded the powers conferred by the *Census and Statistics Act 1905* and its Regulations.

The Court reasoned that the power granted to the Finance Minister under section 10 of the *Appropriation Act (No 1) 2017-2018* was a broad one, allowing for expenditure for urgent needs not provided for or insufficiently provided for. The Court found that the Finance Minister's satisfaction as to the urgent need for expenditure was sufficient to enliven the power, and that the expenditure for the postal survey, while perhaps unusual, was not outside the scope of the Act's appropriation for departmental items. The Court also determined that the Treasurer's direction to the Australian Statistician was within the scope of the *Census and Statistics Act 1905*, as the information sought was statistical in nature.

Ultimately, the High Court dismissed the application, finding that the appropriation was valid. The Court held that the Finance Minister's determination was authorised and that the expenditure was permissible under the Act. The Court also found that the Treasurer's direction was valid. Consequently, the plaintiffs were ordered to pay the costs of the defendants.