Thursday, 12 December 2013

Dead in the water: High Court throws out ACT same sex marriage laws

The High Court has rejected the ACT's same sex marriage laws: . Those who married under those  laws do not have marriages recognised at law.

It is clear from the judgment that a push by the States to legislate for same sex marriage will also fail, for the same reasons: the Commonwealth and the Commonwealth alone can currently legislate as to the status of marriage.  If there is to be any recognition of same sex marriage it must be by Federal Parliament.

In an unanimous judgment (Chief Justice French, and Justices Hayne, Crennan, Kiefel, Bell and Keane), the validity of the ACT laws was rejected.

Their Honours stated:

  1. 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? That question must be answered "Yes". Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament.
  2. The Commonwealth, the Territory and Australian Marriage Equality Inc (as amicus curiae) all submitted that the federal Parliament has legislative power to provide for marriage between persons of the same sex. That submission is right and should be accepted.
  3. As the title of the ACT Act indicates, its object is to provide for marriage equality for same sex couples, not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which the federal laws provide for and recognise. The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised[1] in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised[2] as a marriage in Australia.
  4. Those provisions of the ACT Act which provide for marriage under that Act are not capable of operating concurrently with the Marriage Act.
  5. 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 and the dissolution of such marriages cannot have separate operation and are also of no effect. Questions of inconsistency between the property and dissolution provisions of the ACT Act and the Family Law Act are not reached. The whole of the ACT Act is of no effect....
  1. The ACT Act provides for who is eligible for marriage under the Act[55], how marriage under the Act is solemnised[56], what marriages are void under the Act[57], how marriages under the Act may be ended[58], who is or may be authorised to solemnise marriage under the Act[59], and which marriages solemnised in other jurisdictions are to be recognised as "a marriage under this Act for territory law"[60].
  2. Most of the provisions of the ACT Act are very similar to provisions of either the Marriage Act or the Family Law Act. For present purposes, it is enough to notice only the chief similarities.
  3. First and foremost is the definition of marriage for which the ACT Act provides. Whereas the Marriage Act defines[61] marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life", the ACT Act provides[62] for "the union of 2 people ... to the exclusion of all others, voluntarily entered into for life" (excluding a marriage within the meaning of the Marriage Act). Both Acts are thus 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.
  4. Eligibility to marry is fixed by the two Acts with only one difference. Under the Marriage Act, a person aged between 16 and 18 years may marry[63] if certain consents are given or judicial authorisation is obtained. Under the ACT Act, an adult person may marry[64]. Both Acts prohibit[65] marriage between persons within the same prescribed degrees of affinity or consanguinity.
  5. The forms of marriage are not relevantly different. Each person to be married calls[66] on those present to witness that he or she takes the other party "to be my lawful wedded" spouse. Each form of marriage requires[67] the celebrant to remind the persons being married "of the solemn and binding nature of the relationship into which [they] are about to enter".
  6. Subject to one important exception, the grounds on which a marriage is to be held to be void are substantially identical in the two Acts. The exception is that the ACT Act provides[68] that a marriage under that Act is void if the parties were ineligible to marry. To be eligible to marry under the ACT Act, the persons must be unable[69] to marry under the Marriage Act because the marriage is not a marriage within the meaning of that Act. The effect of these provisions, therefore, is that, if the Marriage Act definition of marriage were to be amended to permit same sex marriage under the federal law, a marriage subsequently solemnised under the ACT Act would be void.
  7. The ACT Act provides for dissolution of marriages under that Act in either of two cases. The first is cast in terms not relevantly different from the provisions of s 48 of the Family Law Act: a court (under the ACT Act, the Supreme Court of the Territory) being satisfied[70] that the parties have separated and thereafter "have lived separately and apart for a continuous period of at least 12 months immediately before the application [for dissolution] is made". The second case for which the ACT Act provides[71] is for the automatic dissolution of the marriage if a party marries another under a law of the Commonwealth, or under a law of another jurisdiction that substantially corresponds to the ACT Act.
  8. Other similarities between the ACT Act and the two federal Acts were referred to in argument but it is not necessary to describe them. The fundamental observation to make is that the ACT Act provides for the creation of a legal status, defined as the union of two natural persons to the exclusion of all others, voluntarily entered into for life. That legal status is created by the exchange of promises, before witnesses and in the presence of an authorised celebrant. If the parties separate and live apart for more than 12 months the status may be terminated by court order. The status given by the ACT Act will come to an end if a party acquires the status of marriage under the Marriage Act. If the Marriage Act permits marriage between same sex couples, a same sex couple may not validly acquire the status of marriage under the ACT Act....

  1. It is necessary to bear steadily in mind that the federal Parliament has power under s 51(xxi) to make a national law with respect to same sex marriage. (The Parliament's power under s 122 of the Constitution to make laws for the government of any Territory need not be considered.) 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 mean that a Territory law permitting same sex marriage can operate concurrently with the federal law. The question of concurrent operation depends[79] upon the proper construction of the relevant laws. In particular, there cannot be concurrent operation of the federal and Territory laws if, on its true construction, the Marriage Act is to be read as providing that the only form of marriage permitted shall be a marriage formed or recognised in accordance with that Act.
  2. The Marriage Act regulates the creation and recognition of the legal status of marriage throughout Australia. The Act's definition of marriage sets the bounds of that legal status within the topic of juristic classification with which the Act deals. Read as a whole, the Marriage Act, at least in the form in which it now stands, makes the provisions which it does about marriage as a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage. Why otherwise was the Marriage Act amended, as it was in 2004[80], 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?
  3. The 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage. Those amendments applied the newly introduced definition of marriage to the provisions governing solemnisation of marriage and gave effect[81] to that definition in the provisions governing the recognition of marriages solemnised outside Australia. Section 88EA of the Marriage Act (inserted[82] by the 2004 amendments) provides expressly that a union solemnised in a foreign country between persons of the same sex must not be recognised as a marriage in Australia.
  4. These particular provisions of the Marriage Act, read in the context of the whole Act, necessarily contain[83] 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. It follows that the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the Marriage Act and accordingly are inoperative[84]. Giving effect to those provisions of the ACT Act would alter, impair or detract from the Marriage Act. Within the Commonwealth, the Marriage Act determines the capacity of a person to enter the union that creates the status of marriage with its attendant rights and obligations of mutual support and advancement. Under the Marriage Act, a person has no legal capacity to attain that status, with the rights and obligations attendant on it, by entry into a union with a person of the same sex.
 So long as the Marriage Act continues to define "marriage" as it now does and to provide, in effect, that only a marriage conforming to that definition may be formed or recognised in Australia, the provisions of the ACT Act providing for marriage under that Act remain inoperative. Because those provisions are inoperative, the provisions of the ACT Act which deal with the rights of parties to marriages formed under that Act and with the dissolution of such marriages can have no valid operation. Whether any of those provisions could have operated concurrently with the provisions of the Family Law Act is a question which is not reached. The whole of the ACT Act is inconsistent with the Marriage Act. It is, therefore, not necessary to consider whether the ACT Act is, in some separate sense[87], "repugnant" to the Marriage Act.

Monday, 9 December 2013

Waiting for the High Court to decide the same sex marriage case

The High Court is due to deliver judgment in the same sex marriage case with the ACT on Thursday.

I had the opportunity today to read the court transcript of the appearance. The transcript is long, and it is unclear from the questions asked by the High Court justices as to what are their positions concerning the case.

The arguments were predictable: the Commonwealth said that the Marriage Act covered the field, and therefore there was no room for the ACT Act, while the ACT and Australians for Marriage Equality said that it did not.

The Commonwealth not surprisingly played on the historical nature of marriage, as part of its argument that the Marriage Act covered the field.

In the transcript were a couple of gems about marriage.

Ms Eastman SC for the ACT said:

"The first is, has the Commonwealth demonstrated that the Marriage Act is a complete and exhaustive statement of the law covering who may marry, how a person may marry and valid marriages for Australia by reference to the terms, the nature or the subject of the Marriage Act and the Commonwealth says at the present time it is confined only to marriages between persons of the opposite sex.

The second question, and perhaps this reflects the matters that your Honour Justice Hayne has just mentioned, but we would say the second question is this, whether on a proper construction of the Marriage Act, is there a negative implication that arises that the ACT is precluded from legislating with respect to marriage that is not defined as a marriage for the purpose of Marriage Act and perhaps if I use this metaphor, has the Commonwealth cleared the field?"
She went on to say:

"Marriage is a social and legal institution. For many, marriage is also, and primarily, a sacrament or an institution of religious significance, but it is in the character of a legal institution that marriage is a subject of legislative power conferred on the Parliament by s. 51(xxi) of the Constitution....There is no dispute between the parties that marriage is an important social institution. There is no dispute between us that that social institution has changed over time and, no doubt, will continue to change. The liberty to marry or not to marry, as the case may be, has never altered over time and individuals remain free to choose their spouse subject to any express prohibition found in the law. So, the negative requirements for the purpose of the Marriage Act (Cth) for the most part are directed to age and issues of prohibitive relationships, affinity or consanguinity."

Mr Kirk SC for Australians for Marriage Equality said:

 "Marriage, in our respectful submission, is very much the sort of thing which is dynamic and was in motion and changing over the course of time such that it is precisely not the sort of thing which would be taken to crystallise and freeze as at 1900. Your Honour Justice Crennan referred this morning to patents or design marks over smells and colours, for example. That is an illustration of how things evolve."

Mr Gleeson SC for the Commonwealth said:

"We would disagree with the ACT’s proposition that this “marriage” is just an expression where the ACT is permitted to allow for people to take up that expression who cannot take up that expression under the Commonwealth law. That is to devalue legally the significance of marriage as an institution as reflected in the Commonwealth laws and to that extent to subordinate the Commonwealth’s conception of the role of marriage to the ACT’s perception that this is simply an expression which ought to be extended to a larger group of people."

Tuesday, 3 December 2013

High Court challenge to ACT gay marriage laws on today

The High Court will, within the hour, commence to hear the challenge by the Commonwealth to the ACT's equal marriage laws. The case will be heard today and tomorrow.

If the challenge is successful, then the High Court may issue orders to take effect before Saturday to prevent the first weddings under the new laws taking place then.

It is possible that if the challenge is successful, but no result is known for some time, that those who have married under these laws may then find their marriages in effect invalid.

The other possibility of course is that the High Court will uphold the validity of the ACT laws. The reality is that we don't know what approach the High Court will take, and experts have been divided about which approach is more likely- as I have blogged before.

If the High Court upholds the validity of the laws, it is highly likely that similar laws will then be passed in NSW, Tasmania, South Australia and possibly Western Australia. If the laws are not upheld, then it is certain that those States will not legislate, because their laws would be the subject of substantially the same challenge.

Fingers crossed.