Take a moment to consider the workload of the Commonwealth Solicitor-General, Stephen Donaghue, now seven or so months into his job. On Monday and Tuesday, he argued the Commonwealth’s position before the High Court in Brisbane in a horrendously complex proceeds of crime matter, an appeal from a 1275 paragraph Queensland judgment. He (presumably) spent last weekend advising the Prime Minister on the potential disqualification of his deputy under s44(i) of the Constitution, advice Turnbull cited in Parliament on Monday. And last Friday, he represented various Commonwealth parties being sued in two actions over the proposed poll on same-sex marriage in a directions hearing before Kiefel CJ. Donaghue’s busy long weekend is one sign of how the recent whirlwind in federal politics will soon descend onto the High Court, which has only just returned from its winter break and is still unable to work in its renovations-affected Canberra home.
The High Court last ruled on an issue of same-sex marriage in 2013, when six of its members (with former Solicitor-General Gageler J sitting out) held that an ACT law permitting same-sex marriages in Canberra was rendered inoperative by the federal Marriage Act. In that judgment, the Court set the stage for the present political controversy, by ruling that the Commonwealth Parliament could validly permit same-sex marriage without the need for a constitutional referendum. In Friday afternoon’s hearing, Kiefel CJ indicated that the High Court will revisit same-sex marriage on 5th and 6th September and presumably will rule on the validity of the postal poll sometime that week (as the mail-out is presently scheduled for the following week.) The postal poll case will therefore be the first significant matter the Court will hear and decide in Melbourne since 1980, when it moved to its Canberra premises. I do wonder whether the Court’s Melbourne registry will be able to cope with the likely heavy interest in those proceedings. Interestingly, it seems that live-tweeting was possible at Friday’s hearing.
As is typical in directions hearings, the issues on Friday were procedural. The hearing’s formal purpose – a request for a temporary injunction to prevent the poll until the Court decides whether or not it is legal – was dispatched quickly. The High Court’s willingness to hear the case before the poll’s scheduled commencement meant that the injunction was unnecessary, especially as the Statistician formally promised that there would be no mailout before September 12. The bulk of the hearing focused on two issues. One was the overlap between the two challenges (so far) to the postal poll – the transcript reveals little about the pair, but it appears that they largely (perhaps completely) overlap. The second issue is the Court’s perennial concern with minimising fact-finding in its original jurisdiction. Here, the problem was the dispute about whether the postal poll falls within a law appropriating several hundred million dollars for urgent and unforeseen matters. As Kiefel CJ observed:
It is not apparent to me how the question of urgency is going to be resolved without reference to any facts at all.
While Ron Merkel QC hoped the Commonwealth (a ‘model litigant’) would simply answer some questions about whether it had sought legal advice about a postal poll before the budget, Donaghue queried whether the question would be precise enough, noting the constraints of legal professional privilege. The parties did agree on one thing: that the hearing would take a day-and-a-half, assuming that no new issues emerge and that there are no interveners.