The ACT government has introduced a bill into the ACT Legislative Assembly that proposes to create a new species of marriage in Australia. Almost instantly the prospect of the federal government taking action to overturn the law once it comes into effect was the subject of news attention. The constitutionally-minded turned their attention to the possibility and prospects of the High Court being called upon to determine the validity of this new form of marriage. See comments by Professor George Williams (also here) and Crispin Hull. We have previously noted that the ACT’s proposed laws depends on advice received from High Court Justice Gageler before he took on his current role.
The unstated purpose of the law is clearly to allow adults of the same sex to marry. However, from the way the bill is worded you would not realise this. The bill proposes to offer an ‘ACT marriage’ (my term) to adult couples who are unable to be married to each other under the Commonwealth’s Marriage Act 1961 (Cth) because their circumstances mean that they are unable to marry under the Commonwealth law (‘because it is not a marriage’ under the Commonwealth law). The words ‘same sex’ do not appear in the bill. Familial relatives will remain barred from marrying under the Commonwealth law and the Territory’s law.
The technical approach to the wording of the bill might mean that the law endures, at least until it reaches the High Court. As a Territory law, the Commonwealth Parliament can overturn it (the federal government can longer do this). The Labor Party’s shadow Attorney-General has suggested that it would vote en-bloc in response to the Territory’s laws ‘if it was somehow more technical’ than simply a same sex marriage law.
The explanatory memorandum to the bill positions the change in law as an advance in human rights protections for Australians, specifically those people in same sex relationships. In the explanatory memorandum: “The ACT Government considers that the right to equality and the right to protection from discrimination … requires the removal of barriers to full marriage equality”.
The effect of the bill will be that there will be three ways for people in the ACT to formally register their relationships with governments:
- Different sex or same sex couples can enter civil partnerships under the Domestic Relationships Act 1994 (ACT). No longer will they be able to enter civil unions.
- Different sex couples can be married under the Marriage Act 1961 (Cth).
- Same sex couples will be able to be married under the Marriage Equality Bill. They will be able to enter into an ‘ACT marriage’.
Moreover, the Marriage Equality Bill does not include the same territorial restrictions as the Domestic Relationships Act 1994 (ACT) or the Civil Unions Act 2012 (ACT), a law which will be repealed upon the enactment of the new law, so qualifying couples resident outside the ACT will be able to enter into an ‘ACT marriage’.
The advice of Gageler & Jackson is here: https://cdn.justice.act.gov.au/resources/uploads/Marriage_Equality_Advice.pdf
With Justice Gageler having provided advice regarding these laws, is it likely he will recluse himself from any High Court ruling on the issue?
Patrick, the most recent case when the High Court decided on a matter of judicial disqualification was Michael Wilson & Parners v Nicholls  HCA 48.
The court confirmed that the test was an objective one. Of ‘whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.’ (at ).
The court also confirmed that it was not necessary that there be actual bias, rather an apprehension of bias. What the court looked for in this case was whether the judge (who had earlier made rulings on preliminary matters between the parties) had predetermined the issues presented before him.
On ‘ACT marriage’ because the ACT government (and it appears that the NSW government will follow) has drafted a law to be consistent with the advice of Justice Gageler the issues that may be presented to the High Court may well be matters that Justice Gageler has predetermined. In such circumstances I would expect him to disqualify himself from hearing the case. What do you think?
I agree with Brad that Gageler J is likely to disqualify himself.
One interesting point to consider, though, is the possible attitude of the parties. It might seem obvious that the people challenging the ACT law (perhaps the Cth) would favour disqualification, while the supporters of the law (presumably the ACT) would favour him remaining, given his earlier view. But a complication is that Gageler J also made it clear that he thought a similar state law (such as the proposed NSW marriage equality bill) would be inoperative under s109. As R Kruse says, the difference is due to the difference between s109 of the constitution and s28 of the ACT Self-government Act. So, on that, potentially more significant, issue, the parties will favour the reverse situation.
Ultimately, though, it’s a matter for Gageler J (and perhaps the rest of the Court.) If it was up to me, I’d prefer to see as few disqualifications as possible in constitutional cases, because the downsides of reduced benches are so great (e.g. the split decision in Monis/Droudis earlier this year.) It’s not clear to me why Gageler J’s prior expression of a view is fatal to his ability to give a fair judgment in this case. Virtually every public lawyer has given some thought to this very issue in recent years and a number of them have expressed their thoughts to others. If Gageler J made it clear that his mind was not closed, why should anyone question that? (That being said, the ACT government’s express reliance on Gageler J’s earlier advice does make this argument a more difficult one in this case.)
If Abbott doesn’t like this then his best bet would be to try, through Parliament, to overturn the ACT law under s 122 of the Constitution. I don’t think a High Court challenge would get very far.
The governing of territories is subject to s 122 of the Constitution — the Cth Parliament has effectively plenary power (like the states) to make laws for the territories. The Cth delegated that power to the ACT Parliament through the ACT Self-Government Act, so the ACT Parliament also has effectively plenary power to make laws for the ACT. But because the Cth Parliament clearly retains its s 122 power it could overturn any ACT law it didn’t like.
Section 109 of the Constitution — which deals with inconsistency of state and Commonwealth laws — extends only to state laws and not territory laws. So the proposed ACT same-sex marriage Act could not be invalid under s 109 by being inconsistent with the Cth Marriage Act.
The ACT Self-Government Act in s 28 provides for a similar mechanism to s 109. However, unlike s 109 – which simply refers to inconsistency of laws – s 28 includes the qualification that an ACT law “shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law”.
That qualification is significant because it means s 28 inconsistency only extends to something like “direct inconsistency”. It does not extend, unlike s 109, to “covering the field” inconsistency, because even if in an Act the Cth Parliament evinced an intention to cover the entire field of operation, or to set out an “exhaustive or exclusive statement of the law”, the mere entering of that “field” by an ACT law would not necessarily be inconsistent. If the ACT law did not alter, impair or detract from the Cth law it would arguably be capable of operating concurrently with it.
The Cth Marriage Act says that “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. I think it’s pretty clear that it covers the field in Australia of a union between two people, whether man and woman or two of same sex. So if a state enacted a same sex marriage law it would probably be inconsistent under s 109 for that reason.
There is a pretty good argument that the ACT law is not inconsistent under s 28. There is arguably no direct inconsistency: where two people of the same sex are incapable of being married under the Cth Act, and their marriage doesn’t alter, impair or detract from marriages between a man and woman entered into under the Cth Act, there would arguably be no direct conflict between the ACT and Cth laws. An argument that same sex marriage “detracts” from a marriage between a man and woman in some inherent or philosophical way wouldn’t be enough. The ACT law merely enters into the field of “marriage” envisaged by the Cth Act, but that is ok under s 28.
On its face a High Court challenge could raise interesting issues of the meaning of the word “marriage” in the Constitution (s 51(xxi)) — and whether the constitutional definition includes same sex marriage. The argument would be that the ACT law cannot be inconsistent with the Cth Act on the ground that the marriage power in s 51(xxi) only extends to unions between men and women. That is, there could be no inconsistency if in the first place the Cth never had power to make laws about same sex marriage. But a challenge to the ACT law wouldn’t be a great vehicle for that argument because the Court would simply decide the case on s 28 of the ACT Self Government Act without saying anything about s 51(xxi).
A better vehicle may be through a state-enacted law. Then because of the apparent “cover the field” inconsistency under s 109 the Court would have to confront the meaning of the word “marriage” in the Constitution. But if the state actually won it would be an ugly result. Better to put political pressure on the Cth to do it properly (and, if that is challenged, hope the HCA finds the Cth law valid under s 51(xxi) – but I’d say that is pretty likely).