News: Commonwealth’s Same-Sex Marriage Challenge Submissions Now Online

Several media outlets have reported this morning that the Commonwealth yesterday lodged its writ of summons to challenge the validity of the Marriage Equality (Same Sex) Act 2013 (ACT) (ACT Marriage Act), which was passed by the ACT Parliament on Tuesday. The Act as passed is not yet available on the ACT Legislation Registry, but the text of the Bill as originally introduced can be accessed here). The full text of the writ and the Commonwealth’s submissions and related documents for the first directions hearing — which is reportedly scheduled for tomorrow — can be accessed here.

The Commonwealth seeks a declaration by the High Court that the ACT Marriage Act is invalid or, in the alternative, is void. At the first directions hearing, the Commonwealth will submit that the matter should not be remitted to a lower court on the basis that it is a matter of public importance. At a later directions hearing, the Commonwealth will seek a hearing before the Full Court at the earliest possible date.

The central argument for an expedited hearing is that the alleged uncertainties about the validity of marriages that some ACT same-sex couples are presently planning should be resolved before those marriages are solemnised. According to the Commonwealth’s submission, if the challenge is successful and the marriages are held to be ineffective there would be ‘immediate adverse effects’ for those couples who have married: ‘[i]t may not be possible or practicable to return people to the true legal position after the event’ (at [13]).

Attached to the submissions are copies of correspondence between the Commonwealth Attorney-General, the Hon Senator George Brandis QC, and the ACT Chief Minister, the Hon Katy Gallagher MLA, in which the Attorney-General requested that the commencement of the Bill be delayed until after the High Court ruled on its validity. The ACT Chief Minister refused that request and outlined the reasons why the ACT had confidence in the validity of the laws.

The Commonwealth cites Windeyer J in A-G (Vic) v Commonwealth [1962] HCA 37, the Marriage Act Case, to the effect that marriage has significance beyond its legal consequences, and:

embodies the results of a long process of social history, it codifies much complicated learning, it sets at rest some famous controversies.

Windeyer J knew well the importance of changing circumstances for constitutional interpretation. His famous dictum in Victoria v Commonwealth [1971] HCA 16, the Payroll Tax Case, bears quotation too:

In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries: or that they may do so.

Like many high-profile constitutional cases — including the Fortescue case decided earlier this year —the legal issue for the High Court is much more technical and confined than the broad social and moral issues lying in the background, or the long social histories or changing circumstances to which they relate.

Here that question is whether the ACT Marriage Act is invalid due to inconsistency (under the test in s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)) with or repugnancy to the Marriage Act 1961 (Cth) and Family Law Act 1975 (Cth). As indicated in the s 78B notice (which indicates that the proceeding gives rise to a constitutional matter), the Commonwealth contends that resolving this question of inconsistency ‘involves the application of principles derived from or analogous to s 109 of the Constitution’ and hence ‘the proceeding involves an interpretation of that section’.

Opinions on High will follow the case closely in the coming months.

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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.