Wilkie v The Commonwealth [2017] HCA 40

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No M105/2017

ANDREW DAMIEN WILKIE & ORS PLAINTIFFS

AND

THE COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS

Matter No M106/2017

AUSTRALIAN MARRIAGE EQUALITY LTD & ANOR PLAINTIFFS

AND

MINISTER FOR FINANCE MATHIAS CORMANN & ANOR DEFENDANTS

Wilkie v The Commonwealth Australian Marriage Equality Ltd v Cormann [2017] HCA 40 Date of Order: 7 September 2017 Date of Publication of Reasons: 28 September 2017 M105/2017 & M106/2017

ORDER

Matter No M105/2017

1. Application dismissed.

2. The plaintiffs pay the costs of the first to third defendants.

Matter No M106/2017

Questions 2, 3 and 5 of the Special Case dated 21 August 2017 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

Inappropriate to answer.

Question 2

Is the Advance to the Finance Minister Determination (No 1 of 2017-2018) (Cth) ("the Determination") invalid by reason that the criterion in s 10(1)(b) of the Appropriation Act (No 1) 2017-2018 (Cth) ("the 2017-2018 Act") was not met such that the Finance Minister's power to issue the Determination was not enlivened?

Answer

No, it is not invalid.

Question 3

(a) Does question 3(b) raise an issue which is justiciable by a court and within the scope of any matter which the Court has authority to decide?

(b) If the answer to question 3(a) is yes, is the Determination invalid by reason that:

(i) on its proper construction, s 10 of the 2017-2018 Act does not authorise the Finance Minister to make a determination, the effect of which is that the 2017-2018 Act takes effect as if Schedule 1 thereto were amended to make provision for expenditure that is outside the ordinary annual services of the Government; and