News: Same-Sex Marriage Case Hearing Set for 3 and 4 December

Monday’s second directions hearing in Cth v ACT fixed a firm date for the full court hearing: 3 and 4 December. That puts the hearing — and perhaps the Court’s orders — ahead of any possible marriages under the yet-to-commence new law’s one-month notice period.

Chief Justice French also settled eight questions for the Court to resolve. Unfortunately, the transcript only reveals the final two, concerning the Court’s ultimate orders and who pays the costs. The rest are contained in an unpublished amended statement of claim lodged by the Commonwealth on 28 October.

Nevertheless, the transcript did reveal two things that won’t be at issue in early December: there are now no evidentiary disputes between the parties and no constitutional ones either.

The parties’ agreement on the facts — resolving questions that arose at the previous hearing — may be due to a change in the Commonwealth’s claims or an ACT decision not to contest them or both. The lack of constitutional disputes may surprise people who equate High Court challenges with constitutional ones. However, as the ACT pointed out on Friday, the immediate fate of the Territory’s marriage law has always turned on the combined meaning of three federal statutes — the Marriage Act 1961 (Cth), the Family Law Act 1975 (Cth) and the Australian Capital Territory Self-Government Act 1988 (Cth) — all of which can amended by the federal parliament in response to the Court’s decision.

The lack of evidentiary disputes removed a possible need to send the case to a lower court for a trial on the facts. By contrast, as the ACT pointed out on Monday, the lack of constitutional disagreements meant that the case could be more appropriately sent to a lower court to resolve the meaning of the federal statutes.

However, French CJ opted to keep the case in the nation’s top court, noting that the meaning of federal marriage laws could have constitutional implications for the states — a reference to the prospect of state same-sex marriage laws, whose fate would partly depend on the Constitution’s provision governing clashes between federal and state laws.

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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.