Regarding Rights

Academic and activist perspectives on human rights

High Court Nudges Australia Closer to Marriage Equality

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By Holly Ritson

University of Adelaide and CIGJ, ANU

Photo: Mktp's photostream,

Photo: Mktp’s photostream,

The High Court yesterday handed down its unanimous and expeditious decision on the invalidity of the ACT’s Marriage Equality (Same Sex) Act 2013.

While there was understandable disappointment in the court’s declaration that the act, and any marriages solemnised under it, are of no effect, the court has delivered a judgment that should provide cause for celebration for equal marriage advocates, and those of us who enjoy a novel interpretation of a constitutional provision.

The Court found that the Marriage Equality Act could not operate concurrently with the federal Marriage Act 1961. Under the Constitution, the Federal Parliament is empowered to legislate with respect to marriage, a power they have exercised by passing the Marriage Act.

The Marriage Act provides a ‘comprehensive and exhaustive’ account of marriage law in Australia, including an explicit provision that heterosexual marriage is the only legally recognised type of marriage, making the ACT act’s definition of marriage (as between two persons of the same sex) inconsistent. Legally, legislation passed by the ACT that is inconsistent with federal legislation has no effect.

Much of the Court’s decision turned on whether the term marriage as used in the Constitution included same sex marriage. If the court found that the definition did not include same sex marriage, arguably the Marriage Equality Act could have existed concurrently with the Marriage Act.

The Court’s finding that constitutionally, ‘marriage’ includes same sex marriage means that Federal parliament does have the power to legislate for same sex marriage. This finding voided the ACT’s argument that the Marriage Equality Act sought to legislate on a type of marriage on which the Federal Parliament could not legislate and so should have been recognised.

Not legislating for same sex marriage has not created an opportunity for States to introduce their own legislation. Rather it is parliament’s indication that under Australian law, same sex marriage is not marriage.

The High Court’s decision has found that under the Australian Constitution this is not the case. As such, the onus is now on Federal Parliament to amend the definition of ‘marriage’ in the Marriage Act to reflect contemporary understandings of marriage.

As it currently stands, the act defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. By refusing to change this definition, parliament is showing itself to be out of touch with not only its constituents and international trends, but with current interpretations of ‘marriage’ as a legal construct.

For an institution that is governed by a document written over 100 years ago, the approach taken by the High Court in determining the constitutional definition of marriage is quite contemporary.

The Court could have taken a more traditional approach to defining marriage as between a man and a woman, as was the case at the time of Federation. Instead, in finding that the term ‘marriage’ includes marriage between persons of the same sex, the Court’s interpretation aligns with popular understandings of marriage equality.

The Court emphasised that understandings of marriage as a legal status, reflective of a social institution, are not, and never have been immutable, using the example of changes to post-divorce rights for women as an example of how understandings of marriage can change. The Court also distinguished between understandings of marriage in ‘Christendom’ and what can be understood as marriage under the Constitution.

Any suggestion that the High Court is homophobic or out of touch with popular opinion must be dismissed. The outcome of the Court’s decision was arguably inevitable, given how exclusively Federal Parliament have exercised the powers granted to them under the Constitution.

The decision is, however, considerably open-minded and respectful of principles of equality and human rights, as the Court has interpreted the Constitution in a way that clearly permits parliament to legislate for same sex marriage.

Given that Australia does not have federal human rights protection, and that the Court is not obliged to consider human rights when interpreting the Constitution, is it difficult to say to what extent human rights considerations were made in the Court’s decision.

In terms of the ongoing debate about an Australian bill of rights, this judgment supports arguments that the legislative powers of parliament could be better balanced by a judiciary that can draw on human rights, or the right to equality when interpreting legislation.

That said, the judgment also shows that the Court can interpret the Constitution consistent with principles of equality and rights, without the need of constitutional rights protection. What the decision highlights is the need for parliament to better consider human rights compatibility when legislating.

Legislation to amend the definition of marriage would surely be found compatible with human rights such as the right to marry and found a family, the right to equal protection at law, and even the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Credit must be given to the ACT for its leadership in the protection of human rights as the first Australian jurisdiction to implement human rights legislation.

The influence of the Human Rights Act 2004 was made clear by the ACT parliament when passing the Marriage Equality Act, drawing the connection between a legislative culture that respects  human rights and positive, and popular, social outcomes.

As to the possibility of creating a different type or status of marriage, as the Marriage Equality Act perhaps attempted to do (distinguishing ‘same-sex marriage’ and ‘marriage’ as separate legal institutions), the success of such an argument would have surely been detrimental to the fight for marriage equality.

Currently, ACT legislation provides for civil unions, but this is beside the point. The point is, rather, that all people, regardless of their sexuality or gender, should have equal access to the law and the institutions it provides for.

Thursday’s other significant announcement was made by Green Senator Hanson Young, who introduced a private member’s bill on marriage equality, which appears to have cross-party support .

We can only hope that the ‘gift’ that the High Court has given to federal parliament in the form of an opportunity to legislate for marriage equality is not returned.

This article was first published on the ANU College of Asia & the Pacific’s website, under the title ‘Keep your Receipt’.


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