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The High Court's Landmark Decision on the Constitutional Validity of Same-Sex Marriage in Australia

Corey Gauci, Fifth Year

The Commonwealth v Australian Capital Territory [2013] HCA 55


(12 December 2013)

Same-sex marriage in the Australian Capital Territory (ACT) is not legal following a decision from the High Court of Australia, nullifying the same-sex marriage law that had been passed by the ACT legislature on 19 September 2013. In the landmark case of The Commonwealth v Australian Capital Territory [2013] HCA 55 (12 December 2013), the Commonwealth Government challenged the Marriage Equality (Same Sex) Act 2013 (ACT) (the ACT Act), successfully arguing that the federal Parliament has power under the Commonwealth of Australia Constitution Act 1901 (Cth) (the Australian Constitution) to legislate with respect to samesex marriage, and that under the Constitution and federal law as it now stands, whether same-sex marriage should be provided for by law is a matter for the federal parliament. In the past, the ACT has been vocal in its support of equality among same-sex couples. The ACT was the first jurisdiction in Australia to legally recognise same-sex couples in 1994. It was the second to allow joint adoption petitions by same -sex couples in 2003, following Western Australia. It would also have been the first to allow civil unions after its Civil Unions Act 2006 (ACT) passed the Legislative Assembly in 2006 had it not been rejected by the Commonwealth. Currently, the ACT is operating a civil partnership registry, which commenced 19 May 2008 under the Civil Partnership Act 2008 (ACT).

On October 10, 2013, George Brandis, the federal Attorney-

General for Australia, confirmed that the Commonwealth Government would challenge the ACT Act, noting that the Coalition Government had significant constitutional concerns with respect to the Acts validity. Ultimately, the High Court found that: a. the federal Parliament is able to make laws about all types of marriage, including same-sex marriage; b. the ACT Act and the Marriage Act 1961 (Cth) (the Marriage Act) were very similar; c. the Marriage Act is a comprehensive statement of the law of marriage; and d. no part of the ACT Act can operate. The federal Parliament can make same-sex marriage laws Under Section 51(xxi) of the Australian Constitution, the federal Parliament has power to make laws with respect to marriage. Before the case was heard, pro-same-sex marriage supporters argued that the federal Parliament could only make laws about marriage as it was understood at the time of federation (which would have been between a man and a woman). In other words, states would have the freedom to make laws about other types of marriage. Nevertheless, the High Court found:
The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.

ACT law and Marriage Act very similar When considering whether the two laws could operate simultaneously, the High Court compared the ACT and Commonwealth laws, finding them to be very similar, making it harder for the ACT law not to encroach on the territory of the Marriage Act. Section 109 of the Australian Constitution states that, when a

law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of inconsistency, be invalid. In other words, where a Commonwealth law purports to cover-the-field, a state law, which attempts to cover the same issue will generally amount to indirect inconsistency. The issue of indirect inconsistency was highlighted in Ex Parte McLean (1930). In this case, the court concluded that, were it is apparent that the federal law was intended to be supplementary to the state law than no inconsistency will arise. Rather it depends on the intentions of the paramount legislation and whether the federal statute shows an intention to cover the subject matter. In assessing the federal Governments intention insofar as legislating on the issue of marriage in the Marriage Act, The Court in The Commonwealth v Australian Capital Territory [2013] found:
Both Acts are directed to the creation of a legal status deriving from the agreement of natural persons to form an enduring personal union which can be dissolved only in accordance with law and which entails legal consequences for mutual support.

The court concluded that the legislature, in drafting the Marriage Act 1961 (Cth), had the intention of covering the issue of same-sex marriage and thus, state law could not supersede such intention. The federal Marriage Act is a complete statement of the law In the High courts judgment, it was noted that:
If a Commonwealth law is a complete statement of the law governing a particular relation or thing, a territory law which seeks to govern some aspects of that relation or thing cannot operate concurrently with the federal law to any extent.

The ACT argued that, because the Marriage Act only deals with opposite-sex marriage, the ACT law dedicated to samesex marriage covers a different area and so is not inconsistent with the federal Marriage Act.

However, the courts judgment leaves no doubt that the Marriage Act is to be considered a complete statement of the law relating to all types of marriage, even though samesex marriage is not specifically ruled out. On the issue, the court stated:
The federal Parliament has not made a law permitting same sex marriage. But the absence of a provision permitting same sex marriage does not mean that the Territory legislature may make such a provision. It does not means that a Territory law permitting same sex marriage can operate concurrently with the federal law. In particular, there cannot be concurrent operation of the federal and Territory laws if the only form of marriage permitted shall be a marriage formed or recognised in accordance with [the Marriage] Act.

There was some suggestion by the ACT Government that the Howard-era amendments to the Marriage Act, inserting a definition that marriage was between a man and a woman, in fact opened the door to state and territory same-sex marriage laws. However, the court further rejected this argument, posing the question:
Why otherwise was the Marriage Act amended by introducing a definition of marriage in the form which now appears, except for the purpose of demonstrating that the federal law on marriage was to be complete and exhaustive

No part of the Act can operate The decision On 12 December 2013, the court concluded that the whole of the ACT Act was inconsistent with the Marriage Act. The practical effect of the High Court decision insofar as the marriages that took place in the ACT under the ACT Act prior to the High Court decision is that, they no longer have any official status. The court said:
Because the ACT Act does not validly provide for the formation of same -sex marriages, its provisions about the rights of parties to such marriages cannot have separate operation and are also of no effect.

In a move that surprised many, the court also ordered that the ACT Government pay the Commonwealths costs.

Where to from here? The High Court has now to all intents and purposes resolved the debate on the constitutional validity of same-sex marriage in Australia with respect to the states and territories power to legislate on the matter. By deciding that the kind of marriage provided for by the Marriage Act is the only kind of marriage that may be formed or recognised in Australia, the High Court has in essence ruled out state laws being used to legislate on same-sex marriage. Nevertheless, although the High Court s decision affirms the federal Governments jurisdiction over the issue of Marriage in Australia; the courts decision has opened the possibility for the federal Government to legislate on the issue of same-sex marriage in the future, meaning that one day, the ACT Act may be realised in federal legislation.