THE 'urgent need' required to allow $122m to be spent on the same-sex marriage vote has been called into question, with the High Court told the only urgency was the government's own deadline.
The full bench of the High Court this morning began hearing arguments about the legitimacy of the government's same-sex marriage postal survey, in front of a packed courtroom in Melbourne.
Marriage equality lobbyists are fighting to block the controversial survey, saying the government doesn't have the power to fund the vote and that they bypassed parliament.
They are also arguing the Australian Bureau of Statistics, tasked with conducting the vote, do not have the power to do so.
The plaintiffs say the government has no authority to spend $122m to fund the vote, and the ABS has no authority to run it.
This morning the court was told "urgent" meant the government could not wait for funds through the normal budget process.
Ron Merkel QC, representing Andrew Wilkie MP and two other plaintiffs, said the urgency in this case was the government's own November 15 deadline.
"You will look in vain for any circumstance that explains urgency outside of the government policy implementation. A date of 15 November is preferred but no reason is made for why that date should not be a month earlier or a month later," he said.
Mr Merkel said like Mr Wilkie, Felicity Marlowe, a mother in a same-sex relationship who has three young children, also has a sufficient interest to bring the case before the High Court.
He said it was not just an emotional concern.
"Her concern is put at the objective level of out there in the public domain, the Australian electors are being asked to express an opinion on her suitability and the legitimacy of her and her partner for having a family in a married or unmarried situation."
He said the High Court has five questions to answer in determining the case.
Among them are whether the federal government was authorised to direct an additional $122m to fund the survey.
He also wants the High Court to rule whether the Australian Bureau of Statistics can run the vote.
The plaintiff will make their case today, before lawyers representing the government will respond tomorrow.
Mr Merkel first addressed Mr Wilkie's standing to appear before the court in the matter.
He told the court apart from Wilkie's standing as a federal MP, he also had an interest because he is also an elector.
Justice Virginia Bell pointed out that was "a special interest that he shares with 16 million other Australians."
Of second plaintiff Felicity Marlowe, Mr Merkel said she had an interest in the case because voters had been asked to have an opinion on the suitability of her "family unit".
Much of the morning has so far been taken up with submissions concerning the government's appropriation of $122m to fund the vote.
Mr Merkel said there had been a "misdirection of law" in relation to the appropriation, saying there was a requirement that an "urgent need" exist for a parliamentary appropriation.
A large crowd has arrived at the Commonwealth Law Courts building in Melbourne where the
High Court is sitting this week.
An overflow room has been set up, with the court so full only standing room remained.
A full bench of the court will hear the challenge over two days.
The voluntary survey was Plan B after the Senate blocked the compulsory plebiscite promised by the coalition at the 2016 election.
The government found the $122 million needed to run the survey by making an advance payment to the finance minister in circumstances.
The payment can be lawfully made where there is an urgent need for spending and the situation was unforeseen.
But challengers to the vote argue the spending does not fit the category of either "urgent" or "unforeseen".
Independent MP Andrew Wilkie, one of the challengers, said today he was confident about the challenge.
"The government is exceeding its power by trying to conduct the postal vote, exceeding its power by trying to spend $122 million without parliamentary approval," he told ABC radio.
"If there is a postal vote, I'll be voting 'yes' and I'll be urging others to vote 'yes' but today and tomorrow in the High Court is very much about the law."
If the survey is found to be unconstitutional, the prime minister will face a choice of trying to fix the problem with legislation and going ahead with the survey; allowing a private member's bill to go to parliament; having another shot at passing the compulsory plebiscite bill; or doing nothing this term.
However Mr Turnbull has repeatedly promised not to change marriage laws without the Australian people having a say and could face the ire of coalition conservatives if he departs from that.
The ABS has committed not to send any survey forms until the judgement is known.
- with AAP
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