Of all the various arguments, moral and constitutional, against the probity of the postal survey, the best, and yet least aired, is that it represents the government's deliberate circumnavigation of the Parliament.
It may not seem sexy, compared to fears of an anti-social campaign atmosphere licensing intimidation and abuse, but this is better suited to the court of public opinion than to technical judicial assessment.
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Postal survey challenged in High Court
A High Court hearing is underway as same-sex marriage campaigners try to stop the Turnbull government going ahead with its postal vote. Vision courtesy Seven News Melbourne.
Nor is it necessarily as readily understandable as the case against the government's use of the 'Finance Minister's Advance' to fund the unpopular $122 million mail-in. Self-evidently, that facility is there for expenditures which are urgent, and which at the time of the budget were unforeseen - neither of which the postal survey is - unless the management of recalcitrant Coalition internals constitutes urgent.
Yet finance ministers have used the advance routinely in the past. As Mathias Cormann notes, Labor did it some 32 times and Cormann himself has used it twice before.
In the High Court, chief guardian of the rule of law and protector of the separation of powers, the executive overreach question (which necessarily incorporates the appropriate use of the Finance Minister's Advance) is likely to cut the most ice.
That's because it goes directly to the doctrine of the separation of powers which delineates the respective roles of the Parliament (the legislative answerable to the people), the executive (the ministry, answerable to the Parliament), and the judiciary, (the High Court and all those below it, which interprets the law).
Simply put the question is, should the executive be able to spend the peoples' money in explicit contradiction of the will of the people as repeatedly expressed by the Parliament?
Constitutional law expert Anne Twomey suggests this could be the key question on which the application to strike down the postal survey turns.
"The only reason they're wanting to taking the money to advance the minister is they couldn't get the Parliament to agree to hold or fund this plebiscite, so on that basis, should the advance to the Minister for Finance be used to fund things that the Parliament itself doesn't want to fund? The answer to that ought to be no," she told the ABC.
The High Court may be less interested in the question of urgency per se than it is in the trajectory of events - a trajectory in which the government has repeatedly sought Parliament's approval for expenditure on a plebiscite and repeatedly been rejected.
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