This week the High Court will hear argument in two cases, the most important of which is the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013 (“Same-Sex Marriage Act”).
In Commonwealth of Australia v The Australian Capital Territory the Commonwealth challenges the validity of the Same-Sex Marriage Act. What is interesting about the Commonwealth’s argument is that it does not attempt to argue that “marriage” as a constitutional concept can only be a union between a man and a woman. Indeed, it goes so far as to positively assert that the better view is that constitutionally the Commonwealth’s marriage power extends to legislating with respect to same-sex unions. The Commonwealth’s argument is there limited to an argument based upon the legislative effect of the Commonwealth Marriage Act 1961 and the Family Law Act 1975. In summary form, the Commonwealth’s argument is as follows:
1. An enquiry into the history of the law of marriage pre 1901 illuminates that marriage is a status regulated by law which naturally invites uniform regulation across a polity;
2. Although the new Commonwealth was conferred ample powers under ss 51 (xxi) and (xxii) to enact uniform laws of marriage and divorce for the whole nation, and although the divergence in State and Territory laws cried out for exercise of the powers, it took 60 years to bring that exercise to fruition;
3. The object and text of the Marriage Act 1961 and the Matrimonial Causes Act 1959 (later carried through to the Family Law Act 1975) convey the Commonwealth Parliament's purpose to have a uniform set of rules for the nation to govern both:
3.1. the essential and formal characteristics for the holding or attaining of the status of marriage, which, for the law of Australia, is a single and indivisible concept; and
3.2. the resolution of controversies and institution of proceedings concerning the determination of matrimonial causes.
4. This conveys three critical consequences as to Parliament's intent:
4.1. any scope for the patchwork of varying State (or Territory) laws -and consequent private international law issues within the nation -is to disappear;
4.2. a lawful marriage for the purposes of Australian law must have the essential characteristics as determined by Commonwealth law from time to time, including presently of being a union between a man and a woman; and
4.3. it is not open under the law of Australia for any other legislature to purport to clothe with the legal status of marriage (or a form of marriage) a union of persons, whether mimicking or modifying any of those essential requirements of marriage, or to purport to deal with causes arising from any such union
5. The 2004 amendments to the Marriage Act confirmed the Commonwealth Parliament's legislative choice that a union which did not involve a man and a woman was not to be recognised as a 'marriage' for the purposes of Australian law
6. The Same-Sex Marriage Act, in purporting to clothe with the legal status of marriage unions solemnised in the ACT between the persons it identifies (including but not limited to its purported extension of marriage to same-sex unions), is:
6.1. inconsistent, within the meaning of s 28(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the ACT equivalent of s109 of the Constitution), with the Marriage Act and the Family Law Act; and
6.2. is repugnant to the Marriage Act and the Family Law Act.
The response of the ACT to the challenge is, in essence, to observe that the Same-Sex Marriage Act is capable of operating concurrently with the Marriage Act and the Family Law Act, and there is nothing in the Commonwealth legislation that is inconsistent with that concurrent operation.
Australian Marriage Equality Inc has sought leave to appear as amicus curiae.