Marriage Equality (Same Sex) Act 2013

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The Marriage Equality (Same Sex) Act 2013 was an act of parliament of the Australian Capital Territory Legislative Assembly that legalised same-sex marriage in the Australian Capital Territory (ACT).[1] It was first presented to the ACT Legislative Assembly on 19 September 2013 by the ACT Attorney-General, Simon Corbell. The act was passed in the Legislative Assembly on 22 October 2013.[2] It came into operation on 7 November 2013,[1] although it did not permit same-sex marriage ceremonies to occur until 7 December.[3][4][5][6]

In the first minutes of 7 December, in Canberra, Alan Wright and Joel Player became the first same-sex couple to marry on Australian soil; other same-sex weddings, both of men and of women, took place in Canberra soon afterwards and on the following day.[7][8] As soon as the act was passed, a challenge by the federal government was lodged in the High Court of Australia. The case was heard on 3 December and, giving judgment on 12 December, the High Court unanimously struck the act down; the ceremonies that had taken place had therefore been void. But the Court also confirmed that the federal parliament has power to legislate for same-sex marriage.

History of the Act[edit]

The bill was presented to the Assembly as the Marriage Equality Bill 2013 and was supported by all eight members of the Australian Labor Party in the ACT and by Australian Greens MLA Shane Rattenbury. It was, however, opposed by all eight members of the Liberal Opposition, who argued that same-sex marriage should be dealt with by the Federal Parliament only.[9]

ACT Attorney-General Simon Corbell presented the bill to the Assembly on 19 September 2013, explaining:

  • Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
  • Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

The ACT Government soon retitled the bill as the "Marriage Equality (Same Sex) Bill", with the aim of further distinguishing it from the definition of "marriage" in the Marriage Act. Further proposed amendments to the bill that would have created a separate institution of marriage for same-sex couples were rejected by the ACT Government.[10]

On 22 October 2013, the Australian Capital Territory passed the bill by a vote of 9-8 in the 17 member Assembly.[11] The deciding vote was cast by Greens MLA Shane Rattenbury. The passing of the bill was seen before 200 members of the public. The passing of the bill represents the first time any jurisdiction of Australia has passed any form of same-sex marriage.

The act defines "marriage" for its own purposes as "the union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life", other than a marriage "within the meaning of" the federal Marriage Act.[12]

Commonwealth challenge to the Act[edit]

The ACT is a self-governing Territory, operating under federal legislation, the Australian Capital Territory (Self-Government) Act 1988 (Cth).[13] Section 28(1) of this act provides that legislation by the ACT Legislative Assembly will have "no effect to the extent that it is inconsistent with" a federal law, although it "shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law".

The Commonwealth Constitution, section 51(xxi), provides the federal parliament with power to make laws with respect simply to "marriage". In conventional terms of constitutional interpretation, one view can be that this is confined to different-sex marriage because that was all that the constitutional framers had in mind, while another view can be that "marriage" should be understood in terms of current public perceptions. Under this power, the federal parliament has enacted a uniform marriage law for the whole of Australia, the Marriage Act 1961 (Cth).[14] As enacted, this act appeared to envisage only different-sex marriage. However, to avoid doubt it was amended in 2004 to include in its interpretation section (section 5) a definition of "marriage" as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".[15]

The marriage power, as with most of the federal parliament's legislative powers, is held concurrently with the states. In fact, marriage was regulated mainly by the states until the federal Marriage Act 1961 introduced uniform marriage law for the whole of Australia. However, it arguably remained unclear whether the Marriage Act "covers the field" of the topic "marriage", leaving no space for a state or a self-governing territory to make laws with respect to marriage of any kind.

Already on 10 October, Commonwealth Attorney-General George Brandis stated that, if the ACT's bill were passed, the Commonwealth would challenge it in the High Court of Australia as inconsistent with the federal Marriage Act.[16] That is: it would be "inconsistent" with a federal law in terms of the ACT self-government act, section 28(1). If the Commonwealth were to lose in the High Court, it retained the option of introducing federal legislation to override the ACT act.[17] However, the federal government could not have been confident that such legislation would pass, since it had a majority only in the House of Representatives and not in the Senate.

Following this, ACT Chief Minister Katy Gallagher maintained that the ACT had every legal right to pass the bill and allow same-sex marriage in the ACT. Shane Rattenbury and Australian Labor Party MLAs released similar statements affirming their support for the bill. Australian Greens Senator Sarah Hanson-Young stated that their party would do whatever it could in the Senate to stop any federal legislation that would override the ACT act.[18]

"The [Commonwealth] Marriage Act simply does not permit of the possibility that a State or Territory might clothe with the legal status of marriage (or a form of marriage) a union of these kinds. It leaves no room for a State or Territory legislature to create a status of 'bigamous marriage', 'polygamous marriage', 'arranged involuntary marriage' or 'trial marriage'. Similarly, within and by reason of the schema of the Marriage Act, couples who are not man and woman (whether same-sex or intersex) are and must remain for the purposes of Australian law 'unmarried' persons. They remain on that side of the binary divide."[19]

– Submission of the Solicitor-General (Part 5, S. 3, Ss. 26) of the Commonwealth Government - to the High Court of Australia

In the High Court: Commonwealth v ACT (2013)[edit]

On 22 October 2013, as soon as the ACT had passed the bill, the Commonwealth Government requested a High Court hearing regarding the validity of this law.[20] Following several directions hearings in the High Court, Chief Justice Robert French announced that the full bench of the Court would hear the Commonwealth's challenge in a two-day hearing on 3 and 4 December 2013.[21]

On 13 November, the Commonwealth provided the High Court with its written submission,[22] which argued that the ACT's law was "inconsistent", in terms of the Australian Capital Territory Self-Government Act 1988 (Cth), with the federal Marriage Act 1961 and Family Law Act 1975.[19]

On 25 November, the ACT provided its written submission to the Court, arguing in response to the Commonwealth that "neither the Marriage Act 1961 (Cth.) nor the Family Law Act 1975 (Cth.) manifest an intention to be an exhaustive or exclusive statement of the [Australian] law governing the institution of marriage".[23]

The case was heard, by a six-judge bench,[24] on 3 December.[25][26][27] The Court delivered its judgment very quickly, on 12 December.[28] It held unanimously that the whole of the ACT's same-sex marriage act was "inconsistent" with the federal Marriage Act 1961 and "of no effect".[29]

The inconsistency identified was twofold. First, the definition of "marriage" in the ACT act was inconsistent with that in the Marriage Act. Second, the ACT act could not nevertheless operate concurrently with the Marriage Act, since the Marriage Act was intended to be "a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage".[30] That exhaustiveness extended to the definition of marriage; the Court did not accept the ACT's contention that the Marriage Act left room for same-sex marriage simply because it did not expressly exclude it. Nor did the Court accept the ACT's contention that the Marriage Act and the ACT act "do not regulate the same status of 'marriage'". After all, the Court observed, "as both the short title and the long title to the ACT Act show, the Act is intended to provide for marriage equality".[31] The Court then found it unnecessary to consider inconsistency with the Family Law Act 1975. It required the ACT to pay the Commonwealth's costs.

The Court did not spell it out, but the consequence of this decision is not that the ACT act is void. Rather, the act is "of no effect" or, as the Court adds,"inoperative".[32] The Court is using the language of its established interpretation of Constitution section 109, which provides that a state law will be "invalid" to the extent that it is "inconsistent" with a federal law. The Court has understood "invalid" in section 109 to mean not that the state law is simply void but that it is "inoperative" for so long as the inconsistency remains; if that federal law were to be changed so as to remove the inconsistency, the state law would revive.[33] The words "of no effect" in section 28(1) of the ACT self-government act appear to reflect that. The addition of concurrent operation (which is not in Constitution section 109) does not create an exception to inconsistency as such, but specifies a circumstance in which inconsistency will not arise. The Court found that, regarding the ACT's same-sex marriage act, this circumstance did not arise.

The Court did not refer to the several same-sex "marriage" ceremonies that had already taken place. However, the Court made it clear that, since the ACT act had never been of any effect and the Marriage Act is exhaustive, the only type of marriage that can be contracted in Australia was and is that provided in the Marriage Act.[34] It follows that those ceremonies could not have created marriages.

That was sufficient to dispose of the case and the High Court is normally reluctant to determine an issue that does not need to be determined. To have stopped at that point, however, would have left the Commonwealth, the ACT and the states that have been contemplating same-sex marriage legislation in limbo as to what they might do next. One option would have been for a state to enact same-sex marriage legislation and wait for it to be challenged in the High Court—probably, as had happened with the ACT act, after marriages under that legislation had already taken place. For these reasons, it would seem, the Court proceeded to decide whether the marriage power, Constitution s 51(xxi), extends to same-sex marriage.

All parties to the case had agreed that the marriage power extends to same-sex marriage. The Court did not consider itself constrained by that agreement, but it came to the same view.

The Court rejected the conventional options in constitutional interpretation:

The utility of adopting or applying a single all-embracing theory of constitutional interpretation has been denied. This case does not require examination of those theories or the resolution of any conflict, real or supposed, between them. The determinative question in this case is whether s 51(xxi) is to be construed as referring only to the particular legal status of "marriage" which could be formed at the time of federation (having the legal content which it had according to English law at that time) or as using the word "marriage" in the sense of a "topic of juristic classification". For the reasons that follow, the latter construction should be adopted. Debates cast in terms like "originalism" or "original intent" (evidently intended to stand in opposition to "contemporary meaning") with their echoes of very different debates in other jurisdictions are not to the point and serve only to obscure much more than they illuminate.[35]

Thus the word "marriage" in Constitution section 51(xxi) states a "topic of juristic classification" which is not tied to any historical model and the federal parliament can legislate as it wishes within that topic. In the Court's view, same-sex marriage comes within the topic.

There can now be uniform federal law for marriages of any kind. The most direct way to achieve that is to amend the Marriage Act, to provide that a person's sex is not a criterion of eligibility to marry. The Marriage Act would retain its exclusivity, so that no state or territory would be able to legislate about marriage of any kind. Owing to that exclusivity, the ACT same-sex marriage act would remain inconsistent with the Marriage Act and, consequently, continue to be of no effect.

See also[edit]

References[edit]

  1. ^ a b "ACT legislation register - Marriage Equality (Same Sex) Act 2013". Legislation.act.gov.au. 7 November 2013. Retrieved 2013-11-04. 
  2. ^ Curtis, Katina. "Feds poised to challenge gay marriage laws - Yahoo!7". Au.news.yahoo.com. Retrieved 2013-10-22. 
  3. ^ Penny McLintock (7 November 2013). "ACT same-sex marriage laws: First couples give notice to wed". ABC News. Retrieved 15 December 2013. 
  4. ^ Peter Jean (25 November 2013). "Commonwealth 'doesn't prohibit' gay marriage, ACT argues". The Age. Retrieved 15 December 2013. 
  5. ^ "Hundreds rally in support of gay marriage". 7 News. 23 November 2013. Retrieved 15 December 2013. 
  6. ^ "Gay marriage hearing likely in December". 9 News National. 25 October 2013. Retrieved 15 December 2013. 
  7. ^ Matthew Raggatt (7 December 2013). "'We do' at midnight to celebrate new dawn for same-sex marriage". Sydney Morning Herald. Retrieved 30 December 2013. 
  8. ^ "Same-sex weddings, December 8". Canberra Times. 9 December 2013. Retrieved 1 January 2014. 
  9. ^ Santilla Chingaipe (22 October 2013). "ACT legalises same sex marriage". SBS World News. Retrieved 30 December 2013. 
  10. ^ No further amendments to ACT same-sex marriage law
  11. ^ Same-sex marriage bill passes in ACT
  12. ^ Marriage Equality (Same Sex) Act 2013 (ACT), Dictionary.
  13. ^ "Australian Capital Territory (Self-Government) Act 1988 (Cth)". ComLaw. Retrieved 2013-12-31. 
  14. ^ "Marriage Act 1961 (Cth)". ComLaw. Retrieved 2013-12-31. 
  15. ^ "Marriage Amendment Act 2004 (Cth)". ComLaw. Retrieved 2013-12-31. 
  16. ^ "Commonwealth to fight ACT same-sex marriage bill in High Court - ABC News (Australian Broadcasting Corporation)". Abc.net.au. 2013-10-10. Retrieved 2013-10-22. 
  17. ^ Under the territories power, Constitution section 122.
  18. ^ "ACT to push ahead with gay marriage laws despite High Court challenge from Federal Government - ABC News (Australian Broadcasting Corporation)". Abc.net.au. 2013-10-11. Retrieved 2013-10-22. 
  19. ^ a b Written submissions (Plaintiff): The Commonwealth of Australia v. The Australian Capital Territory
  20. ^ Commonwealth to launch high court challenge over ACT same-sex marriage laws
  21. ^ High Court challenge to gay marriage will be heard before ACT ceremonies
  22. ^ Timetable: The Commonwealth of Australia v. The Australian Capital Territory
  23. ^ Written submissions (Defendant): The Commonwealth of Australia v. The Australian Capital Territory
  24. ^ Justice Stephen Gageler did not sit. No reason was given, as is the Court's practice. This may have been because, as federal Solicitor-General until his appointment to the High Court in October 2012 or in some other role as a constitutional expert, he had already expressed an opinion upon the issues that would come before the Court in this case.
  25. ^ Commonwealth v ACT [2013] HCATrans 299 (3 December 2013). Retrieved 31 December 2013.
  26. ^ "Commonwealth v ACT (audio-visual recording)". High Court of Australia. Retrieved 22 February 2014. 
  27. ^ Same-sex marriage advocacy organisation Australian Marriage Equality Inc was heard as amicus curiae. No state or other self-governing territory intervened, although any state or the Northern Territory could have done so: Judiciary Act 1903 (Cth), sections 78AA, 78A and 78B.
  28. ^ Commonwealth v ACT [2013] HCA 55.
  29. ^ Byrne, Elizabeth (12 December 2013), High Court throws out ACT's same-sex marriage laws, ABC News, archived from the original on 12 December 2013 
  30. ^ Para. 57.
  31. ^ Para. 60.
  32. ^ It remains on the ACT statute book ("legislation register"), with a note: "This legislation is affected by the High Court's decision of 12 December 2013 in The Commonwealth v Australian Capital Territory [2013] HCA 55."
  33. ^ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian Constitutional Law and Theory (6 ed.). Leichhardt: Federation Press. ISBN 978-186287-918-8.  ch. 8
  34. ^ Para. 61.
  35. ^ Para. 14. The reference to "other jurisdictions" would be primarily to the USA.

External links[edit]