On the Case: Issue 2

The High Court finds ACT same sex marriage law invalid

In this second edition, recent graduate Patricia Muscat (LLB/BA (with First Class Honours), and Associate Dean, School of Law, Sydney Dr Keith Thompson look at the High Court’s recent decision in The Commonwealth v Australian Capital Territory.1

In brief

On December 12, 2013 a unanimous High Court struck down the ACT’s attempt to give statutory backing to same sex marriage. The judgment, is not a statement on the morality of same sex marriage. Nor does it presuppose or sustain a traditional definition of marriage as confined to relationships between man and woman. Rather, the Court applied established principles about inconsistency between Federal and State or Territory statutes to determine that it is not the place of State or Territory governments to legislate on this issue. The Court did no more or less, in this judgement, than reiterate that marriage is legally the domain of the Commonwealth.

The facts

The ACT enacted the Marriage Equality (Same Sex) Act 2013 (the Act). The Act described its primary purpose as being “to provide for marriage equality by allowing for marriage between two adults of the same sex”. The Explanatory Statement emphasised that the Act was intended to apply to couples who were not permitted to marry under the Commonwealth Marriage Act 1961 “because of the way marriage is defined under” the Federal statute.2 However, in October 2013 – before the Act even became operative – the Federal Government indicated that it would challenge the legislation upon the basis that it was, in fact, inconsistent with the Commonwealth Marriage Act (the Marriage Act).

The High Court and “the legal issue”

The High Court made clear that it had been called upon to make a decision on “the legal issue”.3 According to the judges it was not the role of the High Court to provide a normative statement on how marriage should be defined or whether same sex marriage was a desirable social end. Rather, the Court would decide the case by applying established legal principles about inconsistency between Federal legislation and State and Territory legislation.

Inconsistency and concurrent operation

The application of the doctrine of inconsistency stemmed, in this case, from s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the ACT Act). Section 28 echoes4 the principle in s 109 of the Constitution.5 It prevents Territory enactments having effect where they are inconsistent with other laws – including Commonwealth laws – in force, except where the two laws in contention are capable of concurrent operation.

In essence, the High Court held that the inconsistency between the Act and the Marriage Act derived from the fact that both pieces of legislation covered the same topic; marriage as a legal relationship. The constitutional framework underpinning the Marriage Act is s 51(xxi) of the Constitution which vests, in the Commonwealth, the power to make laws with respect to marriage. This is supplemented by s 51(xxii) which vests, in the Commonwealth, the power to legislate on other relevant issues such as divorce and matrimonial causes and other matters incidental to the marriage power. The High Court noted that the Act was consciously developed within this context and was explicitly addressed to “marriage”. The Territory had not sought to legislate with regard to “some form of legally recognised relationship which is relevantly different from the relationship of marriage which the federal laws provide for and recognise”.6 There was, thus, an objectionable overlap.7 The Court, then, addressed the question of whether the Commonwealth can legislate to give legal effect to same sex marriage. The question was relevant because, if the Federal legislature, in fact, had no power to legislate in this arena, the Act may well have been able to operate concurrently with it.8

The parties accepted that the Federal Government could choose to legislate for same sex marriage under s 51(xxi)9 and the Court agreed.10

The Court concluded “marriage” is not an “immutable” term confined to its popular definition at the time of Federation.11 The Court reflected on legal developments that had re-defined the nature of the institution of marriage from something traditionally conceived of as a relationship “for life” to something dissoluble on certain grounds.12 The Court also found that previous decisions did not “define the limit of the marriage power” under the Constitution.13 For example, the characteristics of marriage outlined in Hyde v Hyde and Woodmansee14 – the voluntary union, for life, of one man and one woman, to the exclusion of all others – does not, the Court said, confine the constitutional, or “juristic” concept of marriage. Marriage was, rather, defined broadly in this case. Importantly, many aspects of the broad definition were couched in conditional terms; subject to re-definition by the Federal Parliament. By conceptualising marriage in this way, the High Court acknowledged that there is wide scope for the Commonwealth to affect the legal understanding of marriage at any given time. The Court held that:

[M]arriage’ is to be understood in s 51(xxi) of the Constitution as referring 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 .15

In this way, the marriage power, were the law duly altered by the Commonwealth, was held to embrace the power to legislate with respect to same sex marriage.16

The ACT and Australian Marriage Equality Incorporated17 accepted that the Federal Legislature was able to legalise same sex marriage, but they argued that, because the Marriage Act does not currently in fact, deal with that issue, scope existed for legislation like the Act to operate alongside the Federal provisions without conflict. The Court rejected this argument. The Court held that s 28 of the ACT Act operates such 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 aspect of that relation or thing cannot operate concurrently with the federal law to any extent”.18 This principle was engaged because the Marriage Act, properly construed, was a “comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage”.19

The Court held that the ACT could not, in this context, rely upon the fact that the Commonwealth had simply not passed a law permitting samesex marriage. This did not detract from its power to do so. It did not enable the ACT to make a law addressing the supposed gap and it did not mean that the ACT statute could operate concurrently with the Commonwealth statute.20 The Court held that it would be a complete misconstruction of s 28 of the ACT Act to read down the Federal Act in order to enable the Act to have concurrent operation with the Marriage Act. The provision was not intended to limit Federal power. In fact, it has the inverse effect; properly operating as a constraint on the Territory.21 The upshot of this reasoning was the conclusion that the twoActs could simply not operate concurrently. The Court, on this basis, held that the whole Act to be “of no effect”.22

Why this case is worth knowing about

The High Court, in this case, provided a strong, contemporary reiteration of settled principles of statutory interpretation and legislative inconsistency. In so doing, it emphasised, in unequivocal terms, that marriage is the legislative domain of the Commonwealth. Whilst the Act was found to be invalid the decision is not a victory for a traditional definition of marriage. The Court emphasised that appeals to “a preconceived notion of what marriage ‘should’ be”23 will not gain traction in argument before the High Court in future. This means that the Federal Parliament, if it wishes, has clear Constitutional power to re-define marriage so as to encompass unions between same sex couples. It also brings an end to arguments about the necessity for the issue of the Commonwealth’s power to legislate for same sex marriage to be resolved by way of a referendum. This does not mean that the Commonwealth might need chose to directly ask the Australian people for their views on the issue by way of referendum or plebiscite but it does mean that there would be no Constitutional imperative to do so.

We will need to wait and see if the Commonwealth does chose to legislate in this area.

1 The Commomwealth v Australian Capital Territory [2013] HCA 55

2 Explanatory Statement, Marriage Equality Bill 2013 (ACT) (19 September 2013, 3.

3 At [1]

4 In substance, as opposed to precisely in form

5 Commonwealth of Australia Constitution Act 1900 (Imp) s 109.

6 At [3].

7 For specific areas of overlap identified by the Court, see [42]-[47].

8 At [9].

9 The Court stressed that this question was properly to be addressed as a matter of construction rather than by simple deference to the consensus of the parties before it At [8]

10 At [56].

11 At [16].

12 At [17].

13 At [30].

14 (1866) LR 1 P & D 130 at 133; extracted at [12].

15 At [33], emphasis added.

16 At [37]-[38]. See also [56].

17 which joined proceedings amicus curiae, that is, in the capacity of a friend of the Court

18 At [52]

19 At [57]. The wording used by the Court, here, echoes the sentiments of Dixon J in some of the watershed cases on legislative inconsistency under s 109 of the Constitution, including Ex Parte McLean (1930) 43 CLR 472 at 483 (where Dixon J expressed the proposition as follows: "It depends upon the intention of the parmount Legislature to express by its enactment, completely, exhaustively, or exclusivley, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.") and Stock Motor Ploughs Ltd v Forsyth. (1932) 48 CLR 128 cited at [52].

20 At [56].

21 At [53].

22 At [4].

23 At [36].