NATIONAL AFFAIRS: by Paul MonagleNews Weekly
High Court challenge to same-sex 'marriage' in ACT
, December 21, 2013
The validity of a new law permitting same-sex marriage in the Australian Capital Territory has been challenged in the High Court by the Abbott Coalition government.
The ACT Labor government on October 22 passed its controversial Marriage Equality Same-Sex Marriage Bill in the territory’s single-chamber parliament, the Legislative Assembly, with the support of the sole Greens MLA, Shane Rattenbury.
However, the Commonwealth government has argued that the new ACT law, taking effect on December 7, is invalid because it is inconsistent with the Commonwealth Marriage Act 1961, the Family Law Act and the ACT Self-Government Act 1988. Under the Australian Constitution, the Commonwealth government has the sole power to legislate for marriage. The Constitution also stipulates that any state or territory law inconsistent with a federal law is invalid.
The High Court heard the ACT same-sex marriage case on December 3, reserving its decision until December 12.
In its submission, the Commonwealth, represented by Solicitor-General Justin Gleeson SC, made a number of points:
• that marriage is a status providing uniformity of marriage law in Australia;
• that the Commonwealth of Australia’s founding fathers were clearly adamant that the new constitution must provide uniform marriage and divorce law to clear up the mess then existing in the colonies;
• that the Commonwealth power was to be exhaustive to prevent the patch work of state laws that previously existed;
• that lawful marriage must have essential characteristics, such as being the union of a man and a woman;
• that it is not open for any other legislature to purport to clothe with legal status of marriage any other union of persons, whether mimicking or modifying any of the essential requirements of marriage.
Marriage is a federal power because this allows for one uniform law throughout the country. Before 1901, the separate colonies had different laws governing marriage and divorce. A similar situation existed, and still exists today, in the United States. Seeking to avoid what they called this “mischief”, the founders deliberately gave the Commonwealth parliament the power to make laws for marriage, which it did with the Marriage Act 1961.
In the words of Mr Gleeson, the need to avoid the problems of diverse marriage laws was “at the heart of the very case for Federation itself”.
Another major theme in the Commonwealth’s case is that the Commonwealth has clearly shown its intention that marriage in Australia be limited to the union of a man and a woman. This was assumed in the original Act but clarified in the 2004 amendments, which inserted a definition and also expressly prohibited the recognition of same-sex relationships formalised overseas.
In response, the ACT asserted that the Commonwealth law regulates only opposite-sex relationships, and that it is open to states or territories to confer the status of “marriage” onto same-sex couples. The ACT also argued that although the intention was clear, the text of the Marriage Act as amended in 2004 does not expressly prohibit the formalising of same-sex marriages in Australia.
The High Court allowed submissions from Australian Marriage Equality (AME), which was granted special leave to be heard as amicus curiae (literally, friend of the court). AME was represented by Jeremy Kirk SC, who maintained that the ACT law creates a new and distinct status — not “marriage” but “same-sex marriage”. The ACT — and any state or territory — has the right to do this, he argued, because the Commonwealth law deals only with the status “marriage” as defined in the Act.
The Court drew two important points out of the ACT and AME arguments.
First, after some probing questions from Chief Justice Robert French and Justice Virginia Bell, AME conceded that, based on its argument, a state or territory could legislate a new status of marriage for any type of relationship, including those currently prohibited by the federal Marriage Act. Such relationships included those where one or both parties are a child, or already married to somebody else, or where true consent is not given, or where the parties are related.
Second, it was revealed just how tenuous was the claim of “equality”.
Justice Bell asked the ACT’s solicitor, human rights lawyer Kate Eastman SC, whether a same-sex couple married in the ACT would be “married” for the purposes of any Commonwealth laws which deal with married couples — such as the Evidence Act, which allows a person not to be compelled to give evidence against their spouse in a criminal matter. Further, a “marriage”, under the ACT Act, would still not be recognised in other states or under Commonwealth law.
Ms Eastman admitted that “for Commonwealth laws, they are not recognised as married”. Justice Bell thereupon remarked that the ACT same-sex marriage law gives “a somewhat limited quality to equality”.
It is not known how the High Court will rule on December 12. It may decide the ACT legislation is totally invalid, totally valid or something in between. Despite this uncertainty, some same-sex couples were planning to wed under the new law on the weekend of December 7/8. However, they may be left without the legal recognition they thought they had gained if the High Court decides the law is invalid.
This observer believes the court is most likely to strike down the ACT law and render void any marriages made under it.
Paul Monagle is president of the ACT branch of the Australian Family Association.