This week we’ve seen history made in Australia. For the first time we witnessed marriages between same-sex couples on Australian soil. There is no doubt that these events marked a turning point in the national debate on marriage equality.
However, Thursday we’ll find out whether these marriages will be upheld. At the time of writing, the hearing in Commonwealth v ACT had just concluded in the High Court in Canberra.
The Commonwealth is seeking to strike down the ACT law because it is inconsistent with federal law. The Human Rights Law Centre sought to intervene as a “friend of the court” on behalf of Australian Marriage Equality, to provide specialist information to the hearing and defend the ACT law.
This was the first and most important occasion that our highest court would be considering these legal issues, and we wanted to ensure the voices of those seeking to be married were represented in this case.
Thankfully, the bench decided that our submissions did add “value” to their consideration of the legal issues and we were permitted to intervene. Our barrister, Jeremy Kirk SC, was allowed to address the Court after the barristers for the Commonwealth and ACT Governments each had their turn.
It would be unwise to speculate about the Court’s views on whether ACT law was able to operate without interfering with the Marriage Act 1961, a law the Commonwealth argued was an exhaustive statement on the issue of marriage, and it was not able to be divided into multiple “species”.
The ACT Government and AME both sought to defend the ACT law. If the ACT law only regulates same-sex marriages for the purposes of ACT law, it should be able to operate alongside the federal Marriage Act, in a similar way to domestic relationship legislation or civil partnerships.
This led Justice Bell to, insightfully, remark that such an approach “gives a somewhat limited quality to equality”.
Regardless of whether a uniform national marriage law was intended back in 1961, our barrister argued that the Commonwealth does not have exclusive use of the word “marriage”, a term that has been subject to change over time and has usage and legal meaning outside Commonwealth law.
As well as being the first real test of whether states and territories can legalise same-sex marriage, our hope is that the High Court will clarify whether or not the Constitution permits the Federal Parliament to legalise same-sex marriage.
A confirmation on this point would be a significant victory, removing a ‘legal hurdle’ still thrown up by some MPs reluctant to support federal reform.
The Commonwealth tried to argue that the scope of the Marriage Power shouldn’t be considered by the Court and preferred to talk about different possible views on the issue.
We argued that that this issue could not be avoided and the Court should find that the Federal Parliament did have the power to legislate for same-sex marriage.
The judges must have agreed, leading Justice Hayne to warn that “there is only so long that one can sit on the fence, before it becomes deeply uncomfortable”.
Under the pressure of questioning from the bench, Justin Gleeson SC, representing the Commonwealth, finally conceded that the Commonwealth was in favour of interpreting the Constitution to allow the Federal Parliament to legislate for same-sex marriage, an important concession that was missed in most of the commentary on the hearing.
We’ll find out shortly what the High Court thinks about all of these issues.
Regardless of the outcome, there is no question that this decision will have a significant impact on the future of the marriage equality movement and reform at both the federal and state level.
And hopefully the debate can move away from the Courts back to the importance of love, family and commitment and the need for our politicians to act to give voice to the majority of Australians that support equality for all.
Anna Brown is providing pro bono legal assistance to Australian Marriage Equality and represented AME in its intervention in The Commonwealth v ACT, together with law firm Allens, Jeremy Kirk SC and Perry Herzfeld of Counsel.
Author: Anna Brown
Publication: Gay News Network
Date: 10 December 2013
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