News: The High Court revisits same-sex marriage

Take a moment to consider the workload of the Commonwealth Solicitor-General, Stephen Donaghue, now seven or so months into his job. On Monday and Tuesday, he argued the Commonwealth’s position before the High Court in Brisbane in a horrendously complex proceeds of crime matter, an appeal from a 1275 paragraph Queensland ¬†judgment. He (presumably) spent last weekend advising the Prime Minister on the potential disqualification of his deputy under s44(i) of the Constitution, advice Turnbull cited in Parliament on Monday. And last Friday, he represented various Commonwealth parties being sued in two actions over the proposed poll on same-sex marriage in a directions hearing before Kiefel CJ. Donaghue’s busy long weekend is one sign of how the recent whirlwind in federal politics will soon descend onto the High Court, which has only just returned from its winter break and is still unable to work in its renovations-affected Canberra home.

The High Court last ruled on an issue of same-sex marriage in 2013, when six of its members (with former Solicitor-General Gageler J sitting out) held that an ACT law permitting same-sex marriages in Canberra was rendered inoperative by the federal Marriage Act. In that judgment, the Court set the stage for the present political controversy, by ruling that the Commonwealth Parliament could validly permit same-sex marriage without the need for a constitutional referendum. In Friday afternoon’s hearing, Kiefel CJ indicated that the High Court will revisit same-sex marriage on 5th and 6th September and presumably will rule on the validity of the postal poll sometime that week (as the mail-out is presently scheduled for the following week.) The postal poll case will therefore be the first significant matter the Court will hear and decide in Melbourne since 1980, when it moved to its Canberra premises. I do wonder whether the Court’s Melbourne registry will be able to cope with the likely heavy interest in those proceedings. Interestingly, it seems that live-tweeting was possible at Friday’s hearing.

As is typical in directions hearings, the issues on Friday were procedural. The hearing’s formal purpose – a request for a temporary injunction to prevent the poll until the Court decides whether or not it is legal ¬†– was dispatched quickly. The High Court’s willingness to hear the case before the poll’s scheduled commencement meant that the injunction was unnecessary, especially as the Statistician formally promised that there would be no mailout before September 12. The bulk of the hearing focused on two issues. One was the overlap between the two challenges (so far) to the postal poll – the transcript reveals little about the pair, but it appears that they largely (perhaps completely) overlap. The second issue is the Court’s perennial concern with minimising fact-finding in its original jurisdiction. Here, the problem was the dispute about whether the postal poll falls within a law appropriating several hundred million dollars for urgent and unforeseen matters. As Kiefel CJ observed:

It is not apparent to me how the question of urgency is going to be resolved without reference to any facts at all.

While Ron Merkel QC hoped the Commonwealth (a ‘model litigant’) would simply answer some questions about whether it had sought legal advice about a postal poll before the budget, Donaghue queried whether the question would be precise enough, noting the constraints of legal professional privilege. The parties did agree on one thing: that the hearing would take a day-and-a-half, assuming that no new issues emerge and that there are no interveners.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

5 thoughts on “News: The High Court revisits same-sex marriage

  1. Cases involving the Commonwealth’s spending powers generally draw interventions from the States, although this case seems more narrow in compass than some others recently, i.e. Pape, Williams. That is, more likely to be concerned with the specific statutory basis for this appropriation rather than the scope of the Constitution.

  2. Jeremy, this doesn’t have to be answered here but…

    Whilst a bit off topic in regards to the actual s10 issues in this case, your title “The High Court revisits same-sex marriage” does trigger my fixation with the 2013 decision.

    As a recent convert (and novice) to HC and Constitutional issues, the 2013 decision concerned me because of how the government/parliament ‘determined’ it was not a s128 Constitutional issue and then how the HC by way of both overkill -surely marriage had a common definition both since 1901, Marriage Act 1961, s43 FLA 1975 and Marriage Act 2004 and the ACT ‘Council’s’ bi-laws didn’t need any further discussion than to say that the word marriage cannot be used outside of the federal context, but as I SAY – I’m a novice!

    Perhaps in mischief, the HC selectively drew arrows (or red herrings?) from the earlier decisions forming the common and statutory law, as well as it’s own obiter dicta and whether, ignoring the Courts earlier practice of not seeking answers to questions unasked, or which has no party to refute, delivered a Ratio Decidendi not only at variance with all of the above, but, failed to solve the ‘circularity’ argument the Court itself identified.

    Correct me if I err, but, in one sentence, the 2013 decision basically said that marriage can (must to exclude States?) be whatever the parliament defines it as and that the HC acceptance of redefining it to include SSM was because of the lack of immutability of earlier permutations that included polygamy.

    Now, central and circumference issues aside, as well as all the de facto variations, it intrigues me how s94 of the Marriage Act (Bigamy) sits gently along with s6 (on OS Polygamy – surely to accommodate a limited number of new citizens) and s43 of the FLA 1975.

    How can the HC refer to s6 and not that part of s43 that says the Family Court and all courts dealing with marriage need to deal with it according to the principles of s43.

    • Yes, I agree with all of that. The 2013 ‘ratio’ on s51 always struck me as an obviously political act of overreach by the HCA. Maybe to head off a further constitutional challenge to a federal SSM bill. Maybe just to offer a nod to the ‘right side of history’ crew.

      • Thanks Jeremy – and, perhaps, a little more than just a HCA nod and wink from the ‘left’ side of history!?

        Beside the usurping of s128 by the HCA, my other real concern is that – and contrary to what I always thought was a key legal issue – we no longer have any certainty as to what Marriage means.

        So, is the wider opinion, that the further Constitutional challenge on this topic really closed?

        And if an ALP SSM law was to be contested, who would be left to make a decision on it if the 2013 HCA judges were to self exclude (as Gaegler J did) or had to be challenged on making a review of their own decision?

        As I say, it is very messy and clearly impetus for the polygamy camp to respond ‘Yes’ now in anticipation?

        And what might happen when PM Bernardi and Deputy PM Shelton move their Restitution of Marriage Act 2020?

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