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Same-sex marriage and the High Court: previewing the arguments

This week, the High Court will begin hearing the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013. But don’t expect lofty rhetoric about equality; the case is really about the…

The High Court will this week begin deliberating on whether or not the ACT’s same-sex marriage bill is consistent with the Constitution. AAP/Alan Porritt

This week, the High Court will begin hearing the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013. But don’t expect lofty rhetoric about equality; the case is really about the inconsistency of laws, not human rights.

In addition to the Commonwealth and the ACT, Australian Marriage Equality (AME) has also applied to be heard in the proceedings. Interestingly, no state has decided to intervene.

Commonwealth arguments

The Commonwealth’s submissions show that it will argue that the Commonwealth parliament has the power to legislate in relation to all forms of marriage.

While it recognises that the full scope of the marriage power in the Constitution has not yet been determined, it argues that:

…the better view is that the constitutional concept of “marriage” includes a marriage between members of the same sex.

However, the Commonwealth argues that its Marriage Act 1961 was intended to cover the entire field of marriage in Australia to the exclusion of any state or territory laws on the subject, and that the ACT law is therefore invalid for trespassing into this field. The Commonwealth contends that:

…it is not open under the law of Australia for any other legislature to purport to clothe with the legal status of marriage (or a form of marriage) a union of persons, whether mimicking or modifying any of [the] essential requirements of marriage.

The Commonwealth’s submissions also assert that the Marriage Act prevents a state or territory from conferring the legal status of marriage or a form of marriage on a union of people that would not be valid under the Commonwealth law. This may be because one of the parties is under age, or lacks capacity, or is already married, or the marriage is to expire after a fixed period, or the parties are closely related or of the same sex.

While it accepts that a state or territory can confer rights on couples, including same-sex couples, “as if they were married”, it contends that this still amounts to recognition that they are not legally “married”.

ACT arguments

The ACT, on the other hand, contends that the Commonwealth’s Marriage Act deals only with the legal status of opposite-sex couples and that it does not prohibit or exclude laws conferring the status of marriage on others, including same-sex couples, or a status that is intended to equate to marriage.

In 2004, the Commonwealth passed the Marriage Amendment Act 2004, which defined marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. One of the ACT’s arguments is that this law narrowed the field of the Commonwealth’s Marriage Act, opening up the field of same-sex marriage for the states and territories to legislate within.

The issue is one of intention. If one looks to the extrinsic materials, the explanatory memorandum to the 2004 Act stated that the intention was:

…to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same-sex relationships cannot be equated with marriage.

The ACT argues, however, that this intention was not made out in the provisions of the Act. While it may have prohibited recognition of overseas same-sex marriages as “marriages” in Australia, it did not expressly prohibit same-sex marriages under the law of other jurisdictions in Australia.

Australian Marriage Equality arguments

The AME’s submissions argue that the status conferred by the ACT Act is different from marriage. They contend that the mere use of the word “marriage” does not indicate that the status is the same. They point to the terms “de facto marriage” and “common law marriage”, which really mean that the relationship is not a marriage.

They argue that the preceding words – “de facto”, “common law” or “same-sex” – “serve to distinguish the status from marriage”. They conclude that as the ACT is legislating about something different from marriage, it is not inconsistent with the Commonwealth’s Act.

If the ACT’s same-sex marriage is upheld solely because of the different ACT inconsistency provision, no other state or territory could authorise same-sex marriage. AAP/Alan Porritt

What makes Canberra different

The ACT submissions primarily hang on a unique technicality. Its laws are subject to a differently worded inconsistency provision than that which applies to the states or other territories.

Section 28 of the ACT (Self-Government) Act 1988 states that a provision of a territory law has no effect to the extent that it is inconsistent with a Commonwealth law, but that the territory provision shall be taken to be consistent with the Commonwealth law:

…to the extent that it is capable of operating concurrently with that law.

The ACT claims that this means territory laws can operate concurrently with Commonwealth laws as long as there is no direct inconsistency. While state laws will also be invalid if they intrude into a field that the Commonwealth law intends to cover completely and exhaustively, it is argued that this does not apply to ACT laws.

The effect, according to the ACT, is that its Marriage Equality (Same Sex) Act can operate fully in parallel with the Commonwealth’s Marriage Act without any direct inconsistency arising, because the institution of same-sex marriage is different from that of marriage under the Marriage Act.

The issue about the application of the ACT’s inconsistency provision is the dark horse in this case. There is very little authority on the subject and surprisingly, given the significance of this distinction, there seems to be no discussion of the intent behind it in either parliament or the numerous reports that preceded self-government.

This leads to interesting speculative conclusions. Perhaps it was a drafting error or was intended to be cancelled out by the Commonwealth’s disallowance provision. Alternatively, it might simply mean that ACT laws should be read down to avoid inconsistency with Commonwealth laws so that they can operate concurrently.

If the ACT’s Marriage Equality (Same Sex) Act is upheld solely on the basis of this different inconsistency provision, it would mean that same-sex marriage in Australia would only be available and valid in the ACT. Equivalent laws could not be enacted in any other state or territory.

It would not give rise to “marriage equality”, but rather – as the AME argues – a status that is “not marriage”. A pyrrhic victory perhaps, but no doubt it is simply intended to be a battle in a bigger war.

Join the conversation

17 Comments sorted by

  1. Janeen Harris

    chef

    I'm not happy that the federal government is happy to waste tax payers money on court proceedings to stop same sex couples from getting married. If they can afford to litigate over nonsense that goes against public opinion they can afford adequate education for needy children. The priorities of this mean, elitist narrow minded, male dominant government make me feel ill.

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  2. Greg North

    Retired Engineer

    It seems the ACT AME are both sailing into the wind for on one hand the ACT would sem to want have ignored the very basic inconsistency
    " The ACT claims that this means territory laws can operate concurrently with Commonwealth laws as long as there is no direct inconsistency. While state laws will also be invalid if they intrude into a field that the Commonwealth law intends to cover completely and exhaustively, it is argued that this does not apply to ACT laws. "
    The inconsistency clearly that…

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  3. Haydon Dennison

    Student

    "It would not give rise to “marriage equality”, but rather – as the AME argues – a status that is “not marriage”. A pyrrhic victory perhaps, but no doubt it is simply intended to be a battle in a bigger war."

    I'm concerned about the implications of a victory for the ACT in the High Court, precisely because of this - both that same-sex marriage would become an institution separate and distinct from marriage (the lack of equality opening up avenues for discrimination through the created inequality), and that it would dissuade the Commonwealth from enacting a better law in relation to marriage equality, instead accepting the piecemeal approach where some states do, some states don't, and none have truly achieved "equality" anyway.

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    1. Martin Coote

      logged in via Facebook

      In reply to Haydon Dennison

      Yes, that concerns me as well, Haydon. It's giving the "just don't call it marriage" brigade an unnecessary platform.

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  4. Martin Coote

    logged in via Facebook

    Thank you, Anne, for this excellent overview and for the link to your more extensive analysis!

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  5. Stefan Treyvaud

    Marcomms Specialist

    Yes you would think the government had more pressing priorities than fighting to maintain its anarchic and bigoted views. (hmmm why does that me me think of the catholic church?)

    Then again this government's mis-management of issues such as asylum seekers and public school funding and their myopic views on climate change and internet provision are further examples of the government's combined arrogance, ignorance and bigotry as advocated by the Dear Leader Phoney Bigot.

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    1. Greg North

      Retired Engineer

      In reply to Stefan Treyvaud

      You obviously have a very biased view Stefan and seem to have missed that this case is about Commonwealth Law and a territory not subverting it.
      We either have a Commonwealth of Australia or not.

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    2. Stefan Treyvaud

      Marcomms Specialist

      In reply to Greg North

      Yes Greg - you have found me out!
      I have a bias against short-sighted, narrow-minded, bigots.
      I have a bias against arrogance and hubris, and people who can't seperate their personal beliefs in religious myth from the reality of governance.
      I have a bias against self-serving politicians who lack morals and integrity and ignore the wishes of the majority of people.
      And as to the Commonwealth - I have a bias against hereditary entitlement and non-Australian heads of state.

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    3. Stefan Treyvaud

      Marcomms Specialist

      In reply to account deleted

      @ mike
      What twaddle!
      At no point have I advocated mass confusion in the streets or to let people do 'whatever they want'. Nor have I expressed 'hatred' - quite the opposite - Im call for a lack of hatred/arrogance/prejudice.
      Yours is an extremist black and white argument that frabkly justifies nothing!

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  6. Evan Whitton

    Legal historian

    A fundamental problem is that the Yes or No vote goes to people who are not trained as judges.

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  7. Comment removed by moderator.