The Commonwealth v The Australian Capital Territory: Marriage Equality in the High Court

by | Dec 13, 2013

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About Ryan Goss

On Thursday the High Court of Australia effectively struck down the nation’s first same-sex marriage laws. But there was a silver lining for marriage equality activists: in striking down marriage laws passed by a territorial parliament, the High Court firmly indicated that it was within the constitutional power of the Australian national parliament to legislate for same-sex marriage.

The Marriage Equality (Same Sex) Act 2013was enacted by the legislature of the Australian Capital Territory (the A.C.T.)  in October 2013. The law provided for a form of marriage equality within the A.C.T.,  and the first marriages under the legislation took place over the weekend of 7-8 December.

But there was a wedding crasher.  Shortly after the laws were passed, the federal government (‘the Commonwealth’) announced a High Court challenge, arguing that the laws were inconsistent with existing federal legislation on marriage and divorce, and that those federal laws provided a comprehensive and exhaustive statement of the law for all of Australia. The Court reserved its decision for 10 days and a number of weddings took place in the interim.

In the reasons for judgment, a unanimous 6-judge panel distanced itself from political ramifications of the decision, clarifying that “The only issue which this Court can decide is a legal issue. Is the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, inconsistent with either or both of two Acts of the federal Parliament: the Marriage Act 1961 and the Family Law Act 1975?”. The Court’s answer meant that, “[u]nder 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”.

At the oral hearing, both the federal government and the A.C.T. government had made their submissions on the basis that the Constitution’s reference to ‘marriage’ in s 51(xxi) gave the federal Parliament the power to make a law providing for same sex marriage. But, the High Court noted, parties to litigation “cannot determine the proper construction of the Constitution by agreement or concession.” The Court thus looked at the history of marriage in Anglo-Australian and American law. That analysis led the Court to hold that “marriage” in s 51(xxi) refers “to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations”.  Importantly, therefore, the federal parliament has firm constitutional foundations on which to build any future national marriage equality laws.

In examining the A.C.T.’s marriage equality legislation, however, the High Court was dealing with a particular type of federalism question. In dealing with the arguments made by the A.C.T., the Court acknowledged that “[t]he 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.” Indeed, the Court held that the provisions of the federal Marriage Act (which applies only to marriages between a man and a woman) “necessarily contain the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia”. As a result, “the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the Marriage Act and accordingly are inoperative”. The High Court also rejected arguments, made in support of the A.C.T. legislation, that the version of marriage provided for under A.C.T. law was a different status of marriage than that provided for under federal law, and thus consistent with the federal laws.

The marriages of those who married under A.C.T. law while awaiting the High Court’s reserved decision will now have no legal effect. The Court’s decision will also force those Australian states contemplating state marriage equality legislation to think carefully about their legislative strategies.

It is important to be clear about what this decision does not do. The High Court’s decision does not amount to a prohibition of marriage equality, or to a statement that marriage equality would be unconstitutional. Instead, the Court has said that any changes to the Australian law of marriage will need to be made at the national level by the federal parliament. All eyes are now on Canberra’s Capital Hill.

Ryan Goss is Lecturer in Law at the Australian National University, Canberra; Twitter @ryangoss 

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1 Comment

  1. Andrew

    I learn from this judgment that matters of marriage were made Federal by the draftsmen (and I bet they were all men!) of the Constitution of Australia to avoid the problems which had arised in the USA where it is a State matter. They were wise in their generation.

    Even within the UK we had problems when you had to be 21 to be able to marry in England and Wales without consent, but 16 in Scotland – and Gretna Green flourished on it. Similarly in some European countries and US States you can and in others you cannot marry your first cousin. How much better to make such questions national and avoid (so far as possible) limping marriages and limping divorces.

    I appreciate that that has worked hard on the couples concerned here – but they cannot have been unaware that there was doubt about the ACT’s action and some litigation risk.

    As you say, over to the Federal Parliament!

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