The Commonwealth v Australian Capital Territory

• Jurisdiction: Australia Federal only
• Judge: French CJ,Hayne,Crennan,Kiefel,Bell,Keane JJ.
• Judgment Date: 12 December 2013
• Neutral Citation: 2013-1212 HCA A,[2013] HCA 55
• Docket Number: C13/2013
• Court: High Court
• Date: 12 December 2013

[2013] HCA 55

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel and Bell and KEANE JJ

C13/2013

The Commonwealth of Australia

Plaintiff

and

The Australian Capital Territory

Defendant

Representation

J T Gleeson SC, Solicitor-General of the Commonwealth with M P Kearney SC, G A Hill and C L Lenehan for the plaintiff (instructed by Australian Government Solicitor)

P J F Garrisson SC, Solicitor-General for the Australian Capital Territory and K L Eastman SC with H Younan for the defendant (instructed by ACT Government Solicitor)

J K Kirk SC for Australian Marriage Equality Inc, as amicus curiae (instructed by Human Rights Law Centre)

Constitution, ss 51(xxi), 51(xxii).

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 28(1).

Marriage Act 1961 (Cth), ss 5(1), 88EA.

Marriage Amendment Act 2004 (Cth).

Marriage Equality (Same Sex) Act 2013 (ACT), s 3, dictionary.

The Commonwealth v Australian Capital Territory

Constitutional law (Cth) — Powers of federal Parliament — Section 51(xxi) — Marriage — Whether s 51(xxi) confers power with respect to same sex marriage.

Territories (ACT) — Inconsistency of Commonwealth and Territory laws — Marriage Act 1961 (Cth) defined ‘marriage’ as ‘the union of a man and a woman’ — Marriage Equality (Same Sex) Act 2013 (ACT) provided for ‘marriage’ between ‘2 people of the same sex’ — Whether ACT Act capable of operating concurrently with Commonwealth Act under s 28(1) of Australian Capital Territory (Self-Government) Act 1988 (Cth).

Words and phrases — ‘consistent … to the extent that it is capable of operating concurrently’, ‘marriage’.

ORDER

The questions reserved for determination by the Full Court on 4 November 2013 be answered as follows:

1. Is the Marriage Equality (Same Sex) Act 2013 (ACT), in part or in its entirety:

(a) inconsistent with the Marriage Act 1961 (Cth) within the meaning of s 28(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth); and/or

(b) repugnant to the Marriage Act 1961 (Cth)?

Answer: The whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is inconsistent with the Marriage Act 1961 (Cth).

2. If the answer to question 1(a) is ‘yes’, to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) of no effect?

Answer: The whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is of no effect.

3. If the answer to question 1(b) is ‘yes’, to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) void?

Answer: This question need not be answered.

4. Is the Marriage Equality (Same Sex) Act 2013 (ACT), in part or in its entirety:

(a) inconsistent with the Family Law Act 1975 (Cth) within the meaning of s 28(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth); and/or

(b) repugnant to the Family Law Act 1975 (Cth)?

Answer: This question need not be answered.

5. If the answer to question 4(a) is ‘yes’, to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) of no effect?

Answer: This question need not be answered.

6. If the answer to question 4(b) is ‘yes’, to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) void?

Answer: This question need not be answered.

7. In light of the answers to the preceding questions what, if any, orders should be made for the final disposition of these proceedings?

Answer: There should be judgment for the plaintiff for a declaration that the whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is inconsistent with the Marriage Act 1961 (Cth) and of no effect.

8. What orders should be made in relation to costs of the questions reserved and of the proceedings generally?

Answer: The defendant should pay the plaintiff's costs of the questions reserved and of the proceedings generally.

1 French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. The only issue which this Court can decide is a legal issue. Is the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, inconsistent with either or both of two Acts of the federal Parliament: the Marriage Act 1961 and the Family Law Act 1975? That question must be answered ‘Yes’. Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament.

2 The Commonwealth, the Territory and Australian Marriage Equality Inc (as amicus curiae) all submitted that the federal Parliament has legislative power to provide for marriage between persons of the same sex. That submission is right and should be accepted.

3 As the title of the ACT Act indicates, its object is to provide for marriage equality for same sex couples, not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which the federal laws provide for and recognise. The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised 1 in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised 2 as a marriage in Australia.

4 Those provisions of the ACT Act which provide for marriage under that Act are not capable of operating concurrently with the Marriage Act.

5 Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect. Questions of inconsistency between the property and dissolution provisions of the ACT Act and the Family Law Act are not reached. The whole of the ACT Act is of no effect.

6 To explain this conclusion it is necessary first to consider s 51(xxi) of the Constitution and the ambit of the federal legislative power with respect to marriage, second to identify what the ACT Act provides and finally to consider whether the ACT Act can operate concurrently with the two federal Acts.

Federal legislative power with respect to same sex marriage

7 Section 51(xxi) of the Constitution gives the federal Parliament power to make laws with respect to ‘marriage’. Section 51(xxii) gives the Parliament legislative power with respect to ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. Both powers were included in the Constitution to avoid what the framers saw 3 as a great defect in the United States Constitution. The object of the powers was to enable the federal Parliament to provide uniform laws governing marriage and divorce. That this object was not fully realised for more than half a century, by the enactment of first the Matrimonial Causes Act 1959 (Cth) 4 and then the Marriage Act, should not obscure the national purpose for granting the powers to the federal Parliament. For the purposes of this case, chief attention must be directed to the marriage power in s 51(xxi).

8 Although the Commonwealth and the Territory both submitted that s 51(xxi) gives the federal Parliament power to make a law providing for same sex marriage, their submissions do not determine that question. Parties cannot determine the proper construction of the Constitution by agreement or concession.

9 This Court must decide whether s 51(xxi) permits the federal Parliament to make a law with respect to same sex marriage because the ACT Act would probably operate concurrently with the Marriage Act if the federal Parliament

had no power to make a national law 5 providing for same sex marriage. If the federal Parliament did not have power to make a national law with respect to same sex marriage, the ACT Act would provide for a kind of union which the federal Parliament could not legislate to establish. By contrast, if the federal Parliament can make a national law providing for same sex marriage, and has provided that the only form of marriage shall be between a man and a woman, the two laws cannot operate concurrently.

10 These reasons will show that the Commonwealth and the Territory were right to submit that s 51(xxi) gives the federal Parliament power to pass a law providing for same sex marriage.

11 All arguments to the contrary of the conclusion that s 51(xxi) would support a law providing for same sex marriage begin by referring to what is asserted to have been the settled understanding of the meaning of ‘marriage’ at the time of federation. It is said that, at federation, ‘marriage’ was well understood to have the meaning given to it by several nineteenth century English cases and that the reference to ‘marriage’ in s 51(xxi) must be read accordingly. That is, reference is made to the nineteenth century judicial definitions of marriage on the footing that s 51(xxi) uses a legal term of art, the particular content of which is fixed according to its usage at the time of federation.

12 This understanding of s 51(xxi) is reflected in Quick and Garran's treatment 6 of the power and, in particular, their reference to In re Bethell; Bethell v Hildyard7. Quick and Garran said 8 that this case showed that ‘[a]ccording to the law of England a marriage is a union between a man and a woman on the same basis as that on which the institution is recognized throughout Christendom, and its essence is that it is (1) a voluntary union, (2) for life, (3) of

one man and one woman, (4) to the exclusion of all others.’ Reference might also have been made (and now commonly is made) to the earlier decision of Lord Penzance in Hyde v Hyde and Woodmansee and the statement 9 that ‘marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others’.

13 Two series of...