High Court Transcript shows ACT's Homosexual Marriage Act will create confusion

The Commonwealth of Australia v The Australian Capital Territory [2013] HCATrans 299 (3 December 2013)

Last Updated: 3 December 2013

[2013] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C13 of 2013

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Plaintiff

and

THE AUSTRALIAN CAPITAL TERRITORY

Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 DECEMBER 2013, AT 10.15 AM

Copyright in the High Court of Australia
MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth: May it please the Court, I appear with MR M.P. KEARNEY, SC, MR C.L. LENEHAN and MR G.A. HILL, for the Commonwealth as plaintiff. (instructed by Australian Government Solicitor)

MR P.J.F. GARRISSON, SC, Solicitor-General of the Australian Capital Territory): May it please the Court, I appear for the defendant with my learned friends, MS K.L. EASTMAN, SC and MS H. YOUNAN. (instructed by ACT Government Solicitor)

MR J.K. KIRK, SC: If it please the Court, my learned friend MR P.D. HERZFELD and I seek leave to appear on behalf of Australian Marriage Equality Inc as amicus curiae. (instructed by the Human Rights Law Centre)

FRENCH CJ: Mr Kirk, you will have leave to appear and to make oral submissions limited to your estimated time of 30 minutes.

MR KIRK: May it please the Court.

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Your Honours will see from our outline that the question we would identify as the key question in this case is to construe the federal laws in question, having regard to their conventional tools of interpretation, subject, purpose and text, so as to answer a single question: did the Commonwealth Parliament intend that the Commonwealth laws would set out exhaustively for the nation three matters; the essential and formal requirements for the attaining of the status of marriage, the rules governing the dissolution of that status and, finally, matrimonial causes associated with that status.

We submit that question should be answered yes, in which event the Commonwealth should succeed in the matter. Your Honours, could I just say a little more about how we have framed the question? You will have seen in our written submissions that we have expressed that question in different ways in different places. Sometimes we have said, did Parliament intend marriage would be a single indivisible construct for Australia?

Another way of putting it is, did Parliament intend that marriage would be a genus, not subdivisible into further species at the election of other polities? Another way which might capture the point simply is, did the Commonwealth Parliament intend that there would be a single fixed dividing line between those who are married and those who are unmarried, a line fixed by Parliament itself? Finally, another way of putting that might be, did Parliament intend exhaustively to say who can marry and in what manner? Your Honours will see from our reply - - -

HAYNE J: Does any question about the ambit of 51(xxi) lie as a premise behind that set of questions?

MR GLEESON: No. Your Honours, I had proposed to come to that matter, if it is convenient, at point 6 of our outline, that is, first to deal with the construction of the Commonwealth statutes including, by reference to subject matter, purpose and text and then, if that be the correct construction, to come to the constitutional question your Honour has raised. Our answer, in short, to that constitutional question will be it is unnecessary for this Court to determine the reach of the powers, although we have expressed our submission as to the better view for this reason, that if the power were broad and it included an ability in Parliament to make laws which went beyond the Hyde v Hyde definition of marriage – at least as to the sex of the parties – then the power would amply allow Parliament to say marriage for Australia will go this far and no further. It will go to the Hyde v Hyde element of the definition and will not extend to other possibilities. So that would be one situation.

The second situation is, if it is narrow – if the constitutional power is only in respect to marriages between man and woman – it is open to the Parliament to say, since we are regulating marriage, since we are drawing the line in law between married and unmarried, the line shall be drawn at that place we stipulate, the result being that other polities can obviously regulate different relationships which are not marriages and they can also, within their own power, extend rights and duties as if persons were in a marriage but the answer to whether you are married is a singular one under the federal law.

So we would contend that at point 6 it would be unnecessary for the Court to decide the broader question. If the Court considers it is necessary to decide, I will elaborate on the submission we have put as to the correct view of the power. So, your Honours, if it is convenient to deal with that at that point, just while I am concluding the way the question should be framed, could I invite your Honours to go to paragraph 2 of our reply submissions.

We would contend that the competing argument is that as a matter of construction the Commonwealth Acts deal only with one form of marriage, call it “traditional marriage”, and leave it open to the States and Territories to identify and make lawful as many other forms of marriage varying the integers of traditional marriage as appeal to them from time to time. That is the rival construction, and on that view, the boundary in law between married and unmarried has been left by the Commonwealth laws infinitely moveable. The boundary will be found by a combination of the Commonwealth law plus whatever State or Territory laws may be in existence from time to time.

They are the two competing views that we would then seek to address by reference to the tools of interpretation and if it is convenient, your Honours, I propose to deal with them firstly by looking at the subject of the federal laws, then by looking at the purpose, that is purpose evident from the second reading speeches but reflected in the text and structure of the Acts, and in particular for that purpose, if the Court would bear with me, look at the four critical Acts as they unfolded: the 1959, the 1961, 1975 and 2004 Amendment Acts which instantiated the exhaustiveness that we contend for, and then come to the Acts in their current form.

Your Honours, dealing first then with the subject of the Commonwealth laws, the subject is the matter of status and its consequence in law: are persons married or unmarried; has the marriage come to an end; what matrimonial cause require resolution? This division between the married and the unmarried through law has a consequence for society, that is, people hold or do not hold that status, but beyond that it has a further consequence within law itself because of the complex body of legal rules across the nation which impose rights, duties, immunities, privileges and the like on persons who hold the status of marriage which are distinct from those who do not hold that status.

FRENCH CJ: What do you mean when you use the term “status” apart from the designation of the relationship as marriage?

MR GLEESON: The designation which first will provide a legal basis for a social institution but, secondly, will provide, as it were, the underlying legal rule which will trigger a series of other legal rules, so to the extent that any rule of the common law or statute, federal or State, operates off married or legally married, the Commonwealth Acts give you the answer to the question, is that rule to be triggered? So, in that sense, it is a foundational proposition which then underpins a series of primary legal rules.

KIEFEL J: When you speak of primary legal rules, are you speaking of legal consequences that follow upon the status?

MR GLEESON: Yes. So, your Honours, as it was put in Ford v Ford [1947] HCA 7; (1947) 73 CLR 524 in two places, firstly at 529 in the judgment of Chief Justice Latham:

A person may be said to have a status in law when he or she belongs to a class of persons who, by reason only of their membership of that class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which, in most cases at least, could not be created by any agreement of such persons.

So the status attracts the operation of other legal rules, many of which are imposed by force of law and not by mere agreement:

An alien –

his Honour continues –

for example, as distinct from a subject of the Crown, a married person as distinct from an unmarried person, a bankrupt as distinct from other persons generally, are all persons who have a particular status. The mere fact that an alien is an alien means that he is subject to certain disabilities and disqualifications in law. A husband because he is a husband owes special duties to his wife which he owes to no other person and cannot owe, merely as a matter of law, to any other person.

That is the concept of status that we would contend for, and in the judgment of Justice Dixon at page 534 at about point 6:

Under distinct names or legal designations our law knows a number of special conditions or relationships which, independently of their will, give the persons occupying these positions distinct congeries or bundles of rights and liabilities not belonging to the ordinary unmarried man or woman of full capacity and legitimate birth, and each is recognized as a status. The condition or relationship forming the status bears a legal name to distinguish the particular legal situation of those who occupy it from the general rights and duties attaching to the citizen as such.

Now, we hasten to accept as a matter of reality and history that category of legal rules which attach to the division between married and unmarried has decreased over time. Nevertheless, there remain legal rules which hinge off whether a person has a status of marriage. We have given some examples in our reply submissions at paragraph 19 at footnote 24. So, just to take the New South Wales statutory law under the Succession Act:

(a will is revoked by the ‘marriage’ of the testator) –

that assumes there is an answer in law to the question whether a person has the – acquires the status of marriage. Under the Property (Relationships) Act the relief extended to ‘de facto relationships’ expressly “excludes people who are married”. So, in order to obtain that category of relief, one must not be in the category of married persons. Then there are provisions such as the Married Persons (Equality of Status) Act 1996 which use the language of “spouse” and provide for certain legal rules in that situation.

HAYNE J: What is the proposition that you say comes out of those observations?

MR GLEESON: That because marriage is a matter of status and because there will be a range of legal rules in the nation which depend on either holding or not holding that status – so those being givens – the subject matter then of the federal legislation being directed to that very matter, where is the dividing line to be drawn, it naturally leads to the conclusion that one would expect the law to operate uniformly and exhaustively. So the subject matter calls for uniform and exhaustive regulation across a polity.

CRENNAN J: Is there, perhaps, some further implication which is this? You mentioned that the distinction or division or boundary between married and unmarried persons has narrowed over time. Does that imply that the changing of the boundary is within the federal power?

MR GLEESON: The way I sought to put it was that the sheer volume and comprehensiveness of legal rules that hinge on the boundary has decreased over time. That is a function of decisions of federal and State legislatures and of the common law. However, we still have a core element where the primary legal rule depends upon that answer. That being so, and I then come back to your Honour’s question, it is a matter which you would naturally expect the law to deal with as a matter of construction and a matter which informs the constitutional question at point 4 that the legislature, which has the ability to make laws for the nation, would be determining this is where the boundary line is and remains for today and if it is to be changed this is where it is changed to tomorrow, always knowing that the answer to that question will then provide life to the operation or non-operation of the range of legal rules in the community.

So it goes both to the subject matter calls for naturally – I will say almost inevitably - within a polity that there will be an exhaustive rule on the question and in the constitutional sense it has the additional feature I mentioned.

HAYNE J: There are two points wrapped up, are there not, Mr Solicitor? One: 51(xxi) is a federal power, a federal power which has been exercised. The point, I think, that you make is that exercised you would expect it to be exercised what - exhaustively? What is the adverb that is hanging in the proposition?

MR GLEESON: Exhaustively, so that there is one law for Australia on the question, do you hold the status or not?

HAYNE J: The second point that seems to be wrapped up in it, but which may be not unimportant, is that the notion of marriage is not now, at least on one available point of view, never has been fixed.

MR GLEESON: Will your Honour bear with me if I - - -

HAYNE J: Of course.

MR GLEESON: - - - deal with that at point 4? Thank you.

HAYNE J: Leave the time bomb just ticking there, Mr Solicitor.

MR GLEESON: I was interpreting it as a happy present, your Honour, but as always I am mistaken.

HAYNE J: It is that time of year, Mr Solicitor.

MR GLEESON: I have indicated that within a polity the subject matter naturally calls for uniform and exhaustive regulation. The next step is then to say what happens between polities, and this is where the history of the law has taught us that once one is looking at questions of marriage between polities it becomes enormously messy and complex because we have to develop rules of private international law, so that one polity will decide: is something which was celebrated as a marriage in another polity to be treated as a marriage here; is a dissolution there to be treated as a valid dissolution here; indeed, can I dissolve here what was solemnised there? That is important again to the question of the subject matter.

KIEFEL J: Can you speak of subject matter for legislation and what you see as its intendment to be exhaustive and national without dealing with its constitutional background?

MR GLEESON: Yes, in the sense that I put, namely, whether the constitutional background be broad or narrow. You can pass a law saying this is the boundary line between marriage and non-marriage, and provided you have not drawn that boundary line into an area which has gone into the area that constitutionally is beyond marriage, then there is a problem. So there will be a constitutional problem in that sense, your Honour. Take an example which does not arise in this case. Does the constitutional concept of marriage authorise a law which extends to trial marriages or perhaps polygamy or perhaps involuntary marriages?

If the answer is it does not, that they are simply so far removed from the constitutional concept they are not permissible, then obviously enough a law which purported to authorise them as marriages would be an invalid law. In that sense you could never escape the constitutional question. But in the present case the area of our dispute, which is about the man and the woman component, on either view it is within the power of marriage to legalise that as marriage.

KIEFEL J: But is not the first question whether or not the constitutional background will inform the question that is before us?

MR GLEESON: Yes.

KIEFEL J: If it does, why would you avoid it?

MR GLEESON: I take your Honour’s point in – both of your Honour’s point, and I am not shying away from it. In fact, I am in a sense urging that the constitutional background does inform aspects of today’s debate and in particular in the sense of what I was coming to on the question of purpose and indeed the next point I was coming to that one of the great purposes for the conferral of these powers, contrary to the position in the United States, was to enable there to be a single law for the nation on these questions of marriage, dissolution and matrimonial causes, so that one would not have to treat the States as foreign countries between themselves and one would not need any rules of private international law within the nation.

Now, we embrace that as being one of the central purposes for which the power was given to the new Federal Parliament and one of the purposes which one would naturally, I say almost inevitably, expect to see reflected in the law itself when the law comes to be made. In that sense, the constitutional underpinning - - -

FRENCH CJ: Even though it took 60 years to do it.

MR GLEESON: It took 60 years and as we know, the first divorce bill was tabled in 1901 and failed and the movement of the 60 years showed it took 60 years to do it, but when they did it in 1960 and 1961, what they were doing was, and Sir Garfield Barwick said this eloquently in the second reading speech, carrying forward the vision which the founders had had, that Australia unlike America, could be a nation which had a single set of answers to these questions.

HAYNE J: A single set of answers with respect to Hyde v Hyde marriage or marriage more generally?

MR GLEESON: Our submission is marriage more generally, namely, that for Australia, given that we are getting rid of the scandal - - -

HAYNE J: Yes.

MR GLEESON: - - - of having different rules in different States and, indeed, the Territories, and then having the problems of whether one recognises what the other has done, let us have a single rule so that whenever the question is, married or unmarried, the answer is found in one set of Commonwealth statutes.

FRENCH CJ: This is uniform legislation rather than exhaustive, is it not? You used the word “exhaustive” before. Legislation is not, on your better view of the power, exhaustive of the power.

MR GLEESON: It is uniform. On the better view, it is not exhaustive of the power. The sense in which I was seeking to invoke that word is perhaps better that what flows from its uniformity is that it is to be the sole law from time to time on the question on which side of the line does a person fall and then where that line is drawn, relative to the bounds of the constitutional power, can be either within the outer circumference or up to the outer circumference. So, in that sense, the critical question is, was Parliament intending that for the future the institution of marriage, in its legal designation, would find a sole answer to the boundary line in these two federal statutes. So I have started with subject - - -

CRENNAN J: Well, when you say for the future, “until otherwise provided” is what you mean.

MR GLEESON: Until otherwise provided, yes, until otherwise provided but for the future, in the sense that there was not to be any other law in the nation which would move the boundary line so as to make it a composite boundary line. So the intention being it would not be open to States or Territories to say well, you have designated this as an essential element of marriage. By so designating you have necessarily excluded other possible relationships from taking on the status of marriage. We disagree with your political judgment and we think in the interests of equality that there should be a parallel status which sits next to yours, where we will render your institution of marriage a mere species. So we have Commonwealth marriage, we have let us say Territory marriage, and together we answer the question, is a person married under the law of Australia.

Why that could never sit with the purpose of the federal laws is that immediately one would return to the questions well, the ACT law says, if you are here for the ceremony and you are properly solemnised, you are married. But, what happens when the person returns to New South Wales or Victoria and, not just for the purpose of society – I will leave that aside – but for the purpose of law, we need an answer to the question, are you married?

If we take the example of the Succession Act (NSW), if the person dies and the person is otherwise domiciled in New South Wales and the will would be governed by New South Wales law, how does the New South Wales court decide whether this is a marriage which has revoked the will? It has to, unless the statute is amended to tell you what recognition to give to the ACT law, it has to revert to some rules of either jurisdiction or private international law, whichever way you view it, to decide whether the fact that the marriage was solemnised in the ACT is enough to make it a marriage for New South Wales law even though, for example, every other indicia of private international law, domicile residence, and the like, would point in the opposite direction.

So one of the reasons why the necessary intent of the federal laws carrying out their purpose was to the sole law, as I say, was that was the way in which to remove the mischief and prevent its return. It is for that reason – your Honours will have seen slightly different positions are taken between the ACT and the intervener as to whether the Commonwealth laws allow other elements of Hyde v Hyde to be varied by either the States or the Territories, and perhaps their position is not finally settled on that matter. But our proposition is that the Commonwealth law not only has recognised marriage as Hyde v Hyde marriage – we are in agreement on that – but, in doing so, coming back to your Honour Justice Hayne’s question, has said, and that shall be the sole law for marriage in Australia. So that it is not opened to - - -

HAYNE J: Until otherwise provided.

MR GLEESON: Until otherwise provided, and it is not open to any other polity to pick or choose any of the four elements of Hyde v Hyde and say, our conception of justice would be that persons who wish to enter a trial marriage or a polygamist marriage or the like should have their marriage accorded legality and equality. So that, for Australia as a whole, marriage is now your marriage plus our marriage.

So, your Honours, having attempted to defer something to point 4, I have strayed into it. But the reasons I sought to do that was not only to deal with the questions – and I have only dealt with half the question – but to make clear that we certainly embrace at least that element of the great conferral of these federal powers and the mischief that they were intended to avoid informs that which we see in the laws themselves.

Your Honours, could I just perhaps complete that topic, which is the mischiefs which were evident in Australia immediately prior to Federation which brought forth the great need to have powers which it would be expected would be exercised in the uniform manner that I have indicated, if I can invite your Honours to go to volume 3 of the materials, in terms of the Convention Debates at page 233 - - -

HAYNE J: This is in your history bundle, is it?

MR GLEESON: This is in the history bundle. So, at 233 in the 1890 Convention it was Mr Deakin who said at about point 2, briefly but explicitly:

Mr. Playford, I was glad to notice, agreed that the marriage, patent, and currency laws should be dealt with by the Federal Government, instead of by the separate authorities.

At page 236 in 1891, Mr Parkes put the point eloquently:

One great end, to my mind, of a federated Australia is that it must of necessity secure for Australia a place in the family of nations, which it never can attain while it is split up into separate colonies with antagonistic laws, and with hardly anything in common. I do not need now, Mr. President, dwell upon the many conflicts in the laws of these colonies which ought not to exist, such as the conflicts in our marriage laws –

and he gives some other examples –

but every one of us knows the extent of the evil resulting from this want of harmony. All that can be cured; but it can be cured only by one great union government which shall faithfully represent us all.

So the need to have a uniform marriage power in order to avoid this mischief was at the heart of the very case for Federation itself. The final example I wish to give was commencing at page 247, the Court has the September 1897 debate and you can see at page 249 in the right-hand column near the top that two amendments were proposed by the smaller States. South Australia wished to omit the subclause and Tasmania wished to water it down.

FRENCH CJ: Was there not something from New South Wales as well?

MR GLEESON: Yes, there may have been - - -

FRENCH CJ: I think in terms of suggestions that were made.

MR GLEESON: Yes, yes. This was really the last point in which the no case was run and failed and the no case was argued by Mr Glynn and it is clear over the page that part of the argument was that the smaller States thought the divorce laws in New South Wales and - - -

FRENCH CJ: It was a focus on divorce rather than marriage, was it not?

MR GLEESON: Largely on divorce save for this; that the argument was divorce laws are too liberal in the eastern States and what that is doing is undermining marriage as an institution. That can be seen at the top of 1078 where Mr Glyn has quoted the numbers and he describes it about point 4, the:

colonies which stick to the old notions of marriage – in Queensland . . . South Australia . . . Western Australia . . . Tasmania

having a much better fare on the divorce rates. Liberality of divorce reflects a conception of marriage. So there the arguments are put. Tasmania puts the case for the softer amendment. Then, the argument that really won the day commencing at 1080 is Mr O’Connor, and at the foot of the first column he says:

What we want to get at is beyond all that. We want to bring about, not only a recognition of the status –

that is the Tasmanian proposal –

but a uniformity of the laws in regard to marriage and divorce, which is quite a different thing.

Then, on the top of the right hand column, he identifies the mischief:

If there is one blot which stands out more than another in the American Constitution, it is that, by their Constitution, they are not able to deal with this question in a uniform way; and we all know that this has led to a condition of things socially of a most deplorable character.

Mr SYMON: A scandal!

The Hon. R.E. O’CONNOR: Persons who, according to the law of the state in which they reside, would have no chance of being divorced, may become domiciled in another state by living there a certain time, and then, according to the laws of that state, may obtain divorce for reasons which, in their own state, would have been ludicrous as a ground of divorce.

The Hon. I.A. ISAACS: In some cases they may be divorced without a domicile!

A little further on, Mr O’Connor says:

All these circumstances seem to me to point to the conclusion that, unless we wish to repeat in these communities the condition of things which has obtained in America, it is necessary to provide for uniformity in the law of divorce, and . . . I hope –

it will be a significant improvement –

it will be a law which will represent the average sentiment of the whole community –

and so on. Mr Downer, for South Australia, was not taking the position being pressed by South Australia as such and he strongly urged the inclusion of new powers and he gave the reasons for it. He said, at the bottom of the first column on 253:

As the hon. and learned member, Mr O’Connor, has said, we in the profession know what takes place. If a divorce cannot be obtained in Adelaide, we tell them to go somewhere else, and they go and acquire a domicile there. I am not ashamed to have been one to tell them that. If they acquire domicile, the divorce will be good enough; but in some cases they get divorce without acquiring domicile, and the result would be, if the matter came to be questioned, that the divorce would not be a divorce at all.

That is the case that is being made. The mischief is identified. That is the purpose for the conferral of the powers and that naturally flows through to the construction of the powers as they have been exercised.

HAYNE J: And all this against a background where full faith and credit was going to be an important part of it but not seen as solution.

MR GLEESON: Yes. Your Honours, if one wants the mischief prior to 1900, one can see it in those pages, very clearly indicated. If one needs to go any further, and one probably does not, we have provided the Court with two sources of materials. The first is the US position prior to 1900 which showed the scandal. Your Honours will find the critical materials at pages 427 and following in this bundle. Just to take one example, for instance, at page 441, in the first full paragraph, the author, in 1881, described the position in America as:

We thus have prevailing in the United States a system, or lack of system, of laws which, as already stated, allow of parties being divorced in one State but not in another; of a marriage being valid in one State but invalid elsewhere; of a child being a lawful heir in one and illegitimate in another; and of a man, not a Mormon, having two or more legal wives, changing one or the other according as he moves from one State to another –

to which, as we have seen, operates to make those entirely innocent of the principle sufferers. What is the remedy? He raised the question, could we have a constitutional amendment in America and it is improbable that would be obtained so we need to look for some second-best solution.

In terms of the classic Conflict of Laws text, the Bigelow edition of Story, which is extracted at page 457, the 1883 edition, the rules are set out in I might say excruciating detail and complexity. There were various conflict of laws rules. At 458, at about point 7, the question of capacity was generally governed by the lex loci with an exception for polygamy. At 463, point 7, a similar position was taken in respect to general questions of validity but the exception for polygamy was noted on 464.

When one comes to divorce, there is a detailed discussion from 465 and at 466 the author, perhaps in a more measured manner than the article I took you to, decries the same problem that currently exists in America. The solutions proposed by the author, which are not absolutely clear, are at pages 474 to 475.

Your Honours may recall at the very same time in the United Kingdom in 1895, Le Mesurier settled a dispute and established that domicile was the ground for accessing a divorce jurisdiction. That rule might be thought to have applied in some Australian States which simply picked up a common law jurisdiction approach. However, some colonies had statutes which expressly dealt with jurisdiction and their rules differed.

If I could show you two examples, in this same bundle at pages 202 to 203, the Matrimonial Causes Act 1899 (NSW) had a complex set of rules for jurisdiction, found between sections 13 and 16. Some were independent of domicile, for example, section 12. Section 13 had domicile for a particular number of years in relation to particular grounds. Section 14 gave the wife grounds not tied to domicile. Section 15 and 16 gave the wife domicile grounds, some depending upon years. So that is in New South Wales which did not match the Le Mesurier rule and then by example in Victoria, pages 169 to 70, there are grounds in section 74 of the 1890 Act which do not match New South Wales.

FRENCH CJ: So the purpose of the power informs the purpose of the law?

MR GLEESON: The purpose of the power informs the purpose of the law. I then need to show it is in the text and the structure but it is a purpose which naturally calls for a law of the character that we contend for. Just to conclude on the position - - -

HAYNE J: The purpose of the power informs the law but we do not need to decide how extensive the power is?

MR GLEESON: The answer is no because in the respect in which these parties are in dispute, which is the one we all know about - - -

HAYNE J: Questions of constitutional power cannot go by concession, can they, Mr Solicitor?

MR GLEESON: Your Honour, we accept entirely the thrust of these matters. First of all, we have put something as the better view. The ACT commends that view. The intervener enthusiastically commends that view. The Court does not have a contradictor on that question. The Court would not decide any matter merely on agreement. That is just not on, absolutely not on. If the matter needs to be decided, the Court will decide it and what I had proposed to do, given there was not a contradictor, was to identify what I will call the narrow argument and then deal with what I will call the broader argument.

So I will seek to identify both those arguments, there being no contradictor. But I do not retreat from the proposition that because our law on any view has stayed on the right side of the relevant part of the circumference of the circle, it is either at the circumference or it is inside it. In that sense, it is not necessary to decide the constitutional question.

If your Honours take a different view, I will seek to give our submissions on both sides of that matter, and on the question that both your Honour Justice Hayne and Justice Kiefel raised with me, I do certainly commend and contend that an understanding of why these great powers were conferred informs what we then see in the text and structure of the legislation, and if the laws have the construction effect that is contended for over here, the great mischief which was identified has not been solved. All that has happened is the same mischief has re-emerged in a slightly different area, and it is an unlikely construction of the laws that they were intended to say, because we take Hyde v Hyde for granted it is so obvious it goes without saying, we will move to reconcile the differences between the States and the Territories and we will also make some social advances in the progress.

But having done all that, we circle back on ourselves and say, we are completely content, completely indifferent to whether other polities in Australia wish to come along and erect next to us another institution which will be marriage for the law of Australia. That would be such an unlikely intention to impute to the legislation when we look at the subject matter and the purpose that it is almost bizarre to think that is what objectively the Parliament was seeking to do. But I then have to show your Honours that in the text and the structure that uniformity is there.

The final thing I just wanted to mention on the pre-Federation position, your Honour the Chief Justice asked me was most of the debate about the grounds of divorce, and the answer is yes. It is nevertheless the fact that, even if we moved to matters which were in the Marriage Acts, such as the forms of the ceremony, there were variances even there between the States.

HAYNE J: Was there not considerable difference about prohibited degrees?

MR GLEESON: Differences with prohibited - - -

HAYNE J: Matters of apparently high political debate about the prohibited degrees.

MR GLEESON: Yes. So there were differences in the forms, differences in the prohibited relationships. In terms of who you could marry there were differences. For example, section 18 in the 1890 Victoria Act permitted a man to marry the sister of his deceased wife and that was not expressly permitted in the New South Wales Act, for instance.

FRENCH CJ: There was a problem with that in the United Kingdom too, I think.

MR GLEESON: Yes. Even there was a difference in approach to what defects in the form of the ceremony would invalidate the ceremony or not. So the range of differences extended from the grounds of divorce across to the forms of the ceremony. What is fair to say though is that the differences do not emerge in relation to the Hyde v Hyde elements of the essential elements of marriage, so I accept that. It is the assumption which underpins the colonial legislation immediately prior to Federation. The assumption that underpins that appears to be the Hyde v Hyde assumption. So, on those four essential elements one does not see express variety, so I am not putting that there was actual variation in those four elements which the powers were intended expressly to rationalise.

Your Honours, could I then move from that spot and I am really perhaps in your Honours’ hands because in terms of the outline I was currently moving to point 3 and 4 which was to look at in a little detail the four critical Acts which built the foundation upon which the current Acts emerge. It may be, however, from your Honours’ questions, I would be of more assistance if I moved directly to point 6 and then come back to my more detailed review of the Acts. I am in your Honour’s hands.

FRENCH CJ: Yes, I think if you go to point 6.

MR GLEESON: Thank you. Let me identify first the argument for what I will describe as the narrow position and the argument at its simplest is found in the historical materials at page 491 in the work of Sir Harrison Moore. He said, most simply, the terms of the grant – he is referring to 51(xxi) and (xxii):

may be taken to assume the essential nature of marriage, which has been defined as “the voluntary union of one man and one woman for life to the exclusion of all others” (Hyde v Hyde). The plenary power of “marriage” would not extend to the establishment or recognition of polygamy, or to any union which did not require the consent of the parties, or to one which was designed to be of a temporary character merely.

Now, applying that logic, one would also say, would not allow you to establish or recognise a union between a man and a man or a woman and a woman because that would be to vary one of the four essential requirements of Hyde v Hyde. He goes on to say:

But it enables the Commonwealth to determine what marriages shall be recognized in the Commonwealth, the forms . . . the consents . . . the capacity . . . and the establishment or removal of disabilities on inter-marriage.

Whether it goes further in certain respects may be doubted. Now, your Honours will see that there, even from that expression of the narrow view where the meaning of the phrase has been frozen by reference to a common law conception of marriage, the author has immediately gone on to say that it enables the Commonwealth to determine what marriages shall be recognised in the Commonwealth and so on.

HAYNE J: Well, you speak of Hyde v Hyde as a common law conception of marriage. Hyde v Hyde was a case about the jurisdiction of the matrimonial causes court.

MR GLEESON: Yes, that is the next point I was actually going to come to your Honour, but the first point to be made against this view is that Hyde v Hyde, as your Honour says, was about the jurisdiction of the court under the 1857 Act and the question was could the court exercise jurisdiction by reference to a marriage which had been solemnised in Utah under a right which included polygamy as an element of the marriage.

In that context which, as your Honours says, it was framed as a jurisdictional question which is the way much of this was approached in the 19th century, although, one might say it has a conflict of laws aspect to it, but the essential question was to say, can we as an English court sitting being asked to exercise jurisdiction under our Act, sufficiently recognise this factum from Utah as a marriage for us to go on and exercise statutory powers.

HAYNE J: An Act which provided for the matrimonial offence of adultery and it was the presence of the possibility of adultery that made it difficult, incongruous to apply to the notion of a union which admitted of more than one partner.

MR GLEESON: Yes. In Hyde v Hyde that can be seen in the very first paragraph of the headnote. If I could pick up the discussion at page 133, in the first paragraph it was framed this way:

But I expressed at the hearing a strong doubt whether the union of man and woman as practised and adopted among the Mormons was really a marriage in the sense understood in this, the Matrimonial Court of England, and whether persons so united could be considered “husband” and “wife” in the sense in which these words must be interpreted in the Divorce Act. Further reflection has confirmed this doubt, and has satisfied me that this Court cannot properly exercise any jurisdiction over such unions.

So it is perfectly clear in that paragraph the prism is the one your Honour has put to me which is exercising jurisdiction under this Act, this Act which contains various provisions, including the ones your Honour has mentioned. There is no doubt that that are then some broader statements and that is why some people loosely say this has determined the common law meaning of marriage. So in the next paragraph, when there is a discussion of marriage as an institution, much of this is true:

It creates mutual rights and obligations . . . beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents . . . What, then, is the nature of this institution as understood in Christendom?

Then that leads to the purple passage. So not only is the judgment dealing with that statutory context, but the judgment is saying that as the Matrimonial Court of England we will approach this in the year 1866 on the basis that we can only recognise as a marriage that would be generally understood in Christendom as a marriage. One of the reasons we were going to put why the narrow view is not correct is firstly, it does not have constitutionally the built-in – the statutory context of the UK Act, but secondly, the Constitution did not freeze the marriage power to a power as understood in Christendom. The better view of the power was that while at 1900 this may have lain at the core of the power, this conception of marriage, it did not define the circumference. Once you accept that as being true over time, a different view might be taken that there is no longer a core case and a penumbra, there is simply a more general definition of who it is that may marry.

So, having taken your Honour to the narrow view, we would submit that Hyde v Hyde does not constitutionalise that proposition. Could I then add these other propositions on that matter and perhaps your Honours to go to the Marriage Act Case [1962] HCA 37; 107 CLR 529. At 543 in judgment of Chief Justice Dixon, about point 5, we have the caution that:

It may be said at once that the power conferred by s. 51(xxi.) should receive no narrow or restrictive –

interpretation. A little further down, his Honour says:

In all this “marriage” is considered as the source of the mutual rights and of the legal consequences which flow from it but requiring the definition, the support and the enforcement of the federal law.

It may be significant that his Honour then quotes the very page I have taken you to from Sir Harrison Moore but does not quote the Hyde v Hyde section, does not expressly embrace the correctness of that part of the Harrison Moore position. At 549 at about point 5 in the judgment of Justice McTiernan, there is perhaps the narrowest statement of the power in this judgment:

In the context – the Constitution – the term “marriage” should receive its full grammatical and ordinary sense: plainly in this context it means only monogamous marriage.

So, he is constitutionalising at least one of the four elements of Hyde v Hyde. Next - - -

HAYNE J: By the time of the Marriage Act Case, common law had long since grappled with the fact that polygamous marriage exists.

MR GLEESON: Yes.

HAYNE J: And that it is not a solecism to speak in terms of polygamous marriage, that it is marriage.

MR GLEESON: Yes. It was only a little after that in 1965 that the Matrimonial Causes Act was amended to say that for the purposes of the proceedings under that Act, a polygamous union would be treated as if it were a marriage. That is an illustration of the Commonwealth Parliament preserving the dividing line – there is marriage and there is non-marriage – but saying for particular purposes we will extend rights as if something were a marriage. But in terms of your Honour’s question of when laws in the community have moved in a particular direction, certainly there is evidence of those moves both before and shortly after the - - -

HAYNE J: It was provoked particularly by Justice McTiernan’s reference to “full grammatical and ordinary sense”. “Full grammatical and ordinary sense”, at least a possible view is that since well before Federation the term “marriage” was one used in respect of polygamous marriage, and if number comes out of Hyde v Hyde, the notion that 51(xxi) constitutionalises Hyde v Hyde is starting to become an interesting proposition.

MR GLEESON: Your Honours, it may be that there is a lesser constraint – and it is the one I was going to come – that as we are told in the Union Label Case, Parliament cannot declare a spade a trademark. It may be that there is a constraint by reference to the idea that it must still be sufficiently recognisable as capable of being regarded as the institution of marriage for the constitutional power to be available. One then asks the - - -

HAYNE J: For the institution of marriage as a social observation, or what?

MR GLEESON: Or what, and as Justice Brennan put it, one might look to the common law to see if the common law has recognised it as marriage or marriage-like, which is what your Honour put to me, but we would extend that to say that one could look at the development in the statutory law across the nation to see whether it allows one to take a view that something is sufficiently marriage-like to be available for an exercise of the constitutional power.

What I want to say just about the statutory developments in law as being not irrelevant and perhaps being significant is that over the course of the 20th century they have taken both a positive and a negative form which might bear on this question. They have taken a negative form in the sense that the removal of the criminalisation of homosexuality has laid one plank in the sand. I am referring briefly to a larger set of statutes. In the positive sense we have many statutes extending rights to persons who are in relationships other than man and woman as if they were in such a relationship. I can give your Honours much more detail if necessary. Then we have broad anti-discrimination norms.

CRENNAN J: When Justice Higgins said what he said about trademarks, I think one could accept that it would have seemed unthinkable at the time that a colour or a smell might be a trademark, but as we know in due course and under a certain degree of international pressure, the law did indeed change in ways that would have seemed unforeseeable at the time.

MR GLEESON: Yes, what looked like a spade at the time - - -

CRENNAN J: So that that category of trademarks has been widened in ways that once would have seemed unimaginable.

MR GLEESON: Certainly, that is so and that is consistent with established constitutional interpretation. It is an example of that form of development that can occur. I am simply identifying that there will be some outer limits which probably do not need to be resolved in this case whereby the power may not enable the Parliament to declare something to be a marriage which bears no recognisable resemblance to marriage which can be sourced in the common law, in statutory law or in any other materials that the Court can properly look at.

So it would raise a question whether in international developments, for instance, in the ICCPR where there are various rights accorded and where I currently understand it there is no absolute clarity on the answer to these questions, if international developments move to a position where marriage was recognised in the ICCPR as a broader set of unions that may, may be a material which might inform this question of the outer boundary of the constraint but the present case we are dealing with is, in a sense, one of the easier ones for saying was at least that much of Hyde v Hyde frozen.

HAYNE J: But the relevant social institution that is lying in behind is the social institution of personal unions. Now, the social institution called “marriage” - I would be surprised if there was debate about this, there may be, but has never, I think, been regarded as frozen. The social institution of marriage, if you look back pre, post, during Federation has changed.

MR GLEESON: Certainly changed in our – in the early part of our submissions we have said if you open the frame a bit further, it has changed even more over time through roman law notions.

HAYNE J: But once you say that 51(xxi) is not using the word “marriage” in the sense, “marriage” as defined in Hyde v Hyde, what are you left with except marriage as legally recognised and it would have other elements, social institution marked by personal union.

MR GLEESON: You are left with more than that. Could I ask your Honours to go to R v L [1991] HCA 48; (1992) 174 CLR 379 at 404? Justice Dawson said at about point 3:

The power of the Commonwealth Parliament to legislate with respect to marriage . . . is predicated upon the existence of marriage as a recognizable (although not immutable) institution. Just how far any attempt to define or redefine, in an abstract way, the rights and obligations of the parties to a marriage may involve a departure from that recognizable institution, and hence travel outside constitutional power, is a question of no small dimension.

That is a reference back to some observations of Justice Brennan, particularly at pages 391 and 392. So in a case which does not arise today except for the purpose of argument, can the Parliament pass the trial marriage law where marriage automatically ends after five years unless renewed by the parties by an act in the registry office? That is varying one of the elements of Hyde v Hyde in a most significant manner. Would that still be a recognisable institution of marriage? If you could find nothing in the common law, nothing in the developments in statutory law, nothing in the relevant international materials which supported a view that that was a recognisable institution of marriage, you would be likely to exceed power.

On the other hand, as in the example Justice Crennan put to me in the trademarks example, where one actually sees materials which allow one to see with a vision now not available in the past that the fundamental concept of what the trademark does can be applied in a variety of ways previously not thought appropriate, then one may have a more expansive reach of the breach of the power. Your Honours, in the Marriage Act Case the only other parts that I had identified on this topic are Justice Taylor at page 560, point 6 describes it as:

a broad constitutional power and . . . is entitled to as wide an interpretation as it can reasonably bear.

At page 572 in Justice Menzies at about point 7:

I do not think the existence of s. 51(xxii.) requires the implication that s. 51(xxi.) is limited to determining who may marry and the forms and ceremonies of marriage. The power must extend to the mutual rights and obligations . . . unless it be that State law could deprive marriage according to Commonwealth law of any legal significance except for Commonwealth purposes –

I just dwell on that passage because, whether the broad or narrow view is taken of it, one of the propositions apparently advanced by the ACT is the Commonwealth laws have not determined exhaustively who it is that may marry. They have left that only partially answered and they have left a gap that is available for filling. Certainly the question of determining who may marry is within the reach of the marriage power and that is why I have submitted that, even if a narrow view were taken of the power, the decision that the persons who may marry are those identified in the Act and no others would lie within the scope of the power. Then Justice Windeyer at page 577 directly addressed himself to the argument that the power should be limited to Hyde v Hyde and he said at the top that is:

an unwarranted limitation. Marriage can have a wider meaning for law.

Then he gives an example from Justinian. He refers to the Brewery Labels Case, in particular what Justice Higgins said in the dissenting judgment, and picks up the point:

“The usage in 1900 gives us the central type; it does not give us the circumference of the power”.

But then says he expresses no view theoretically on whether it would be within power to make polygamy lawful. He does observe at about point 8 that:

a law dealing with the tribal marriages of aboriginal inhabitants . . . might also . . . be within power.

FRENCH CJ: That is a reference to polygamous marriages?

MR GLEESON: Yes. That is important and correct and indicating that the constitutional conception is not limited to marriage in Christendom as of 1866 and has the broader connotation your Honour has mentioned. On page 578 there is a reference to “the inheritance of European Christian civilisation” at about point 6 :

We derive from it a concept of marriage that is universal –

In the next paragraph it is not a matter of - - -

HAYNE J: No, go on:

universal in all systems of law that participate in that inheritance.

It is a rather more qualified proposition.

MR GLEESON: Yes. So there is some discussion here on the changes in form it has taken over time, particularly at the bottom of 578 to 579.

HAYNE J: But before you go from 578, what do you say about Justice Windeyer’s proposition at about point 7, that firstly:

Marriage law is not a matter of precise demarcation; but it a recognized topic of juristic classification.

His Honour gives content to that in the preceding sentence when he says:

The matters about which the Commonwealth may to-day make laws with respect to marriage are those of the kind generally considered, for comparative law and private international law, as being the subjects of a country’s marriage laws.

MR GLEESON: There is a lot of truth in that statement.

HAYNE J: If you sit on the fence too long, Mr Solicitor, it becomes deeply uncomfortable.

MR GLEESON: The reason there is a lot of truth in it is that the answer I put to the Court earlier was that the materials the Court would look to in ascertaining the constitutional power to understand whether this was still recognisable as marriage included (a) the common law, (b) domestic statute, and (c) available international materials. What his Honour is here referring to is really category (c) and as category (c) we embrace it. It is not the whole of the materials the Court could look to.

In the present case, each of those sources of material – common law, query; statute, definitely; comparative and private international law materials, most probably; would point in favour of the power extending as far as the broader view. Of course, the importance of the comparative law in private international law materials might be viewed this way. Today I have focused largely so far on the marriage power being exercised to provide a single answer within Australia as to whether someone is married. It, of course, has the additional element, which would overlap the external affairs power, of determining what will be the single answer in Australian law when a foreign court wants to know whether to recognise a marriage which has been celebrated in Australia.

So it has a recognition function and, indeed, it extends to matters such as when marriages under Australian law can be solemnised overseas, for example, by diplomatic staff. In that sense, to understand the scope of the institution in the comparative law and in the private international law materials can properly inform whether one is still dealing with the institution of marriage. At 579, I just wanted to observe at point 6 that his Honour, similar to the judgment I went to earlier, said the marriage power at least deals with who may be married and how.

CRENNAN J: His Honour seems to show a conception of marriage law which is quite broad and deep.

MR GLEESON: Yes.

CRENNAN J: The point is also made at the midpoint of 580.

MR GLEESON: Yes.

CRENNAN J: His Honour talks about it would be difficult, in some ways, to exhaust the subject of the Commonwealth power, that is to say, it is not confined to matters of definition or capacity, consent or celebration.

MR GLEESON: No, and as he goes on to say in 580:

So far as they can be regulated by law without impairing the essence of marriage, laws about them would, I consider, properly be called laws with respect to marriage.

So, if one implies a non-impairment test, in the present case the answer would be that the hypothetical federal law does not, and could not rationally be said to impair the essence of marriage as an institution and, therefore, it would be within power. That also casts some light on the question of, well, when you have drawn the boundary and said everyone on the other side of the boundary is unmarried, that is the very thing you would expect within this power because it does not impair the essence of marriage, it confirms the essence of it to say, well, if it goes this far, it goes no further.

Your Honours, that is what I had proposed to put on that question and on either side of the argument, making clear the Commonwealth’s contention is the better view is the broader one. Unless your Honours wish me to develop more on that topic. If it were a relevant matter to itemise more than I have what are the developments in statutory law which would reflect the broader view, I can provide a note to that effect or it may be that Mr Kirk is going to deal with that topic.

Your Honours, then returning to point 3, that the proposition I am now seeking to make is that when one reads the four critical Acts as they unfolded one sees within them from the very outset the instantiation of the purpose I have identified that this will be the sole law for Australia on what is marriage and it is those foundational elements which then may be traced through in to the current Acts.

I am dwelling for a moment on the foundational Acts because if one looks to the extrinsic material that is where one finds it. One does not need to see it repeated again in subsequent Acts because it was there and it was embedded in the foundational Acts. So could I ask your Honours to go to volume 2 of the legislation as made? The Matrimonial Causes Act 1959 was the subject of the second reading speech at pages 385 to 401. Sir Garfield Barwick, in a speech which Dr Evatt, subsequently on 401, I think, without irony described as “careful and brilliant” laid out the object of the Bill:

to give to the people of Australia, for the first time in our history, one law with respect to divorce and matrimonial causes and such important ancillary matters as maintenance of divorced wives . . . Upon the bill becoming law, Australia, so far as my research goes, will be one of the first countries under a federal constitution to deal comprehensively and uniformly on a national basis with matrimonial causes. Indeed, the power to make such a law is seldom vested by a federal constitution in the National Parliament.

He then refers back to the founders and says:

With great prescience, however, the makers of the Australian Constitution vested in this Parliament a power, concurrent with that of the States, to make laws with respect to these matters.

In simple terms, our forefathers thought it appropriate to an Australian way of life for which they were preparing that a regulation of these matters should be on an Australia-wide basis. Now, that is the central purpose and object. If I could go over to the next page, 386 at the top, there is a reference back to Mr Joske’s bill which had failed and to his great perception that with:

the great mobility afforded by modern transport and our expanding industrialization have had on such problems as domicile, and the disparity of the grounds of divorce from State to State. He realized that Australians . . . had developed such a maturity and such a national sentiment that they were now ready to accept a national law –

Now, that comes back to your Honour the Chief Justice’s observation 60 years. These were the circumstances in which by the late 50s, there was a sufficient case to say that leaving disparity between different State laws is not acceptable and relying upon domicile as a ground for jurisdiction and treating the States as foreign nations between each other is a mischief to be resolved.

Sir Garfield then set out the four major changes that he had made to the Joske Bill. That is on 386 in the second column. In the middle there is a strengthened role for reconciliation but then the second point, in terms of the grounds of divorce, what he did was to reduce the 30 separate grounds of the States and Territories into some 14 grounds, not merely a lowest common denominator but seeking to ascertain the soundness of the grounds. The Court might see that exercise over on page 396 of the speech, and it was the most comprehensive attempt to rationalise the various grounds in Australia.

Back on 387, the third key change was rather than have a new federal divorce court, it would turn into federal jurisdiction, the jurisdiction at present exercised by the State courts. That is important, we submit, in terms of the uniformity of the scheme that not only will we have a single set of matrimonial causes but we will have a single exercise of federal jurisdiction vested in various State courts, and the single federal jurisdiction confirms that this is one law of matrimonial causes for Australia. Now, if I could than just pass over to 392, at the foot of the left-hand column there is a reference to the fact that:

The jurisdiction of Australian courts to dissolve a marriage has been based on the domicile –

separate domiciles for separate States and Territories:

Under this bill any person domiciled in Australia can institute proceedings in any State or Territory, with the sole qualification [of] . . . a short period of residence –

So that is the idea of a single Australian domicile, and that is the very idea which the ACT Act destroys because it necessarily invites a return to questions of domicile when different courts around the country are asked whether to recognise an ACT marriage.

There is no doubt there are various places where Sir Garfield understood that marriage involved a woman and a man and a wife and a husband. I will observe some, but not all of them, in passing: 392, right-hand column at the top. Then the conclusion of the speech – we move forward just before the conclusion perhaps to 397. In the right-hand column Sir Garfield moved to the question of nullity of marriage. One of the great advances of the uniform law was to take what were previously common law rules for void or voidable marriages and to codify them, and Sir Garfield says in the second paragraph on that page:

The bill contains in Part IV. some provisions with respect to void and voidable marriages which certainly would be more appropriately found in a marriage bill. It is my hope to introduce –

that shortly and that will be a uniform bill. Now, this is critical because in the very Matrimonial Causes Act because it recognised a cause of nullity there needed to be a definition of void and voidable grounds, and so although they belonged in a Marriage Act they were placed for necessity in the Matrimonial Causes Act.

I will seek to show your Honours that the grounds for void and voidable marriages embodied as an essential element of marriage the four elements of Hyde v Hyde plus codified consistent approaches to prohibited relationships and marriageable age. Your Honours will see at the foot of 397 extracted are the provisions to go into the Matrimonial Causes Act for void marriages and those provisions appeared in the Matrimonial Causes Act, later appeared in the Family Law Act and in 1976 found their way to the Marriage Act.

Looking at them, the first provision, lawful marriage to another person is a disqualifying matter – that is a partial dealing with polygamy. It is certainly dealing with bigamy but it is only a partial dealing with polygamy. The second matter is the prohibited relationships and they are rationalised and they are found over the page, common scheme for Australia. The third matter is that:

the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with –

formal requirements. As of the 1959 Act, because there was not yet a Marriage Act for Australia, the State laws were still allowed to operate to determine the forms and the Commonwealth law accepted the outcome of the State laws and adopted a lex loci rule. That is the area of freedom for the States which was removed in 1961. Then element (d), it must be a “real consent”, that is the voluntary element of Hyde v Hyde, and then (e) the parties must be “of marriageable age”. Again, at that point, marriageable age was left to either the common law or the States and that was the great reform of the Marriage Act to make that uniform as well. If your Honours then drop down to the voidable marriages, there are a variety of grounds and one can see in ground 3(d):

the wife is pregnant by a person other than the husband.

A reflection that marriage, for the purposes of the Matrimonial Causes Act, is marriage between a man and a woman, a husband and wife. It is one of the reflections in the text of that being an essential element of what is a marriage which in turn reflects what can be the matrimonial causes. The role of the High Court is dealt with at 399, left-hand column near the bottom. That, although it will not be burdened with original or guaranteed appellate jurisdiction, by leave it can play its role to ensure the:

uniformity of interpretation of the federal law, and uniformity of practice and procedure –

So, the idea is a single federal jurisdiction ultimately, if necessary, coming to this Court. Your Honours, those purposes revealed clearly in the speech are then embodied in the text of the 1961 Act which commences at page 405. These are the critical features. First of all, section – I am sorry, your Honours. Let me go back a step. The Matrimonial Causes Act – I should ask your Honours to go to page 327 and to start at section 8 on page 332.

Section 8 is the provision for uniformity and denial of power to State or Territory legislatures. The matrimonial causes are only to be brought under this Act. What are the matrimonial causes – going back to page 330? There are five primary matrimonial causes of which I will mention something about the first two – dissolution and nullity – and pass over the other three. The matrimonial cause for dissolution is embodied in section 28 and there we find the 14 grounds.

A number of those grounds embody the relationship of marriage as one between husband and wife. For example, if I leave out the nature of the various matrimonial offences – graphic as they are – nevertheless in (g) that is a ground of fault where the husband has done certain things. So that is one reflect of that concept and your Honours also see that concept in section 30(1) and in section 44, which was the action for damages.

That is a reflection within the identification of the matrimonial cause of an essential element of the marriage. The next observation I would make is that the “for life” element of Hyde v Hyde is necessarily implicit in the identified matrimonial causes. That is, marriage is for life unless brought to an end by dissolution. Dissolution is done by a court in federal jurisdiction on identified grounds. Your Honours, that is of little importance because you know that one of the provisions of the ACT Act is to provide parties with elective divorce without notice. Section 33, if a party enters a marriage under the Marriage Act (Cth) or indeed enters a marriage under an equivalent same-sex Act of another State, the ACT marriage automatically comes to an end.

That proposition that marriage can end by election and without court order in federal jurisdiction on proven ground severs the unity of this concept which is in this Act and is traced through there afterwards. The federal jurisdiction I have spoken of – that is the single federal jurisdiction – is reflected in section 23. I might just observe on the private international law point, section 23(4) and (5) deal with the internal rule within Australia. It is subsection (4) which establishes the Australian domicile for dissolution, and subsection (5) for nullity, it was a slightly broader ground of either domicile or residence. But that is the point where Sir Garfield’s scheme provided a single answer in Australia to the question of how one advances a matrimonial cause. That is what I wanted to say about dissolution.

Could I then turn to nullity? If your Honours would go to section 47, the nullity suit required the marriage to be either void or voidable. The grounds of voidness are set out in section 18 and I have referred to them through the second reading speech. In essence they embodied three of the four elements of Hyde v Hyde and they embodied the second order prohibition on prohibited relationships and they defer to the States only in the areas of formalities and marriageable age. Then the voidable grounds I referred to are found in section 21, and the reflection of marriage between wife and husband is 21(1)(d).

Other provisions reflecting that marriage is between man and woman, husband and wife, are found in section 56, section 95(3)(b), which is in the area of recognition, and 97 which is in the area of evidence. Section 111 – sorry, I will just pass over that. The final matter I wanted to observe in the Act is the “as if” provisions such as section 83. So, for the purpose of particular causes, a marriage would include a purported marriage that is void. So a marriage which failed under section 18 would, for the purpose of this particular cause, be treated as if it were a marriage and the cause thus made available.

That form of extension of the provisions of the Act is consistent only with there being the dividing line between married and unmarried. The dividing line remains unmoved but for the purpose of a particular cause something which is not a marriage will be accorded the same status. I have indicated when we moved to the Marriage Act that the two principal areas which were still left with the States were formalities and marriageable age. Let me show how they were dealt with in the Marriage Act by being brought into the uniform federal scheme. Your Honours, the second reading speech commences at 465. In the second column Sir Garfield describes this as the:

necessary complement to the Matrimonial Causes Act . . . But the relationship of husband and wife, parent and child, is common to all of us, whether we derive from one State or another. Also I think it is particularly proper that, as this country increases in international stature, it should have one uniform law of marriage applicable throughout the Commonwealth and at least some of its territories.

The purpose that is there revealed is double. The form of marriage to be recognised is between husband and wife, no doubt, but that is to be the one uniform law of marriage applicable throughout Australia and when Sir Garfield refers to the increases in international stature he is also adverting to the fact that when issue comes up in a foreign court to find out whether you are married in Australia, you will find all the answers in this Act. In terms of the legislative mischief, at 466 right-hand column, again, it is clearly identified, the aim being to:

replace this diverse body of statutory law and render unnecessary any resort to the rules of private international law to determine, in the Commonwealth or in any Territory, the efficacy and validity of a marriage solemnized or a legitimation effected with the Commonwealth and the Territories to which the bill applies, or indeed outside the Commonwealth if the marriage is celebrated under Part IV.

There is the mischief, there is the purpose. What is currently a diverse body of law which requires complex private international law questions will be swept away if the marriage is solemnized here or outside Australia in certain circumstances. His Honour then makes the correct observation, perhaps echoing Henry Maine that the law of marriage and the very nature of things deals largely with matters of procedure and capacity. He says:

Though largely procedural, a basic endeavour –

is to conceive of certain matters that he then goes on to refer to. What we are dealing with is a form of legislation with procedure writ large. Matrimonial causes are causes. The formalities are the procedure by which one enters marriage but it is through an understanding of the procedure that one sees two things, one is the uniformity of the scheme and the second is its essential elements. The rest of this speech goes on to identify the very grave differences across Australia in a range of matters which were to be rationalised in the Marriage Act. I might go to 471 because there is a reference to bigamy. In the left-hand column the first full paragraph says:

Mr. Speaker, it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition. But insistence on its monogamous quality is indicated by, on the one hand, the provisions of the Matrimonial Causes Act . . . and by a provision in this bill making bigamy an offence.

Now, that is why there was, at the outset, no definition. It was in a sense unnecessary because the qualities of marriage could be deduced from the types of matrimonial causes and from the forms required in the ceremony of marriage. If I could then go to the Marriage Act 1961, which commences at 403. The first absolutely critical provision is section 6 on page 408. That is the provision which says the field that is going to be left available to the States is the question of “registration of marriages” and a second matter concerning aboriginal marriages, which has now left the Act. Likewise, section 7 says:

this Act does not affect the validity or invalidity of a marriage that took place before the date –

of commencement but otherwise this is to be the only place under which marriages are to be solemnised. That is a critical provision because that has displayed the intention that the only scope for State laws is registration. The intervener will say to your Honours well, that is only talking about registration of a marriage which is a marriage under this Act and the Parliament has expressed indifference to whether there might be other types of marriages and if there are other types of marriages, States or Territories could go for their life and they cannot just register them but they can deal with all the elements concerning them.

If that were the interpretation placed on section 6 it would destroy the entire purpose and object of the Act. In that vein, your Honours might see from section 9, that to the extent that State offices were to continue to play a role in relation to marriage, it was only through arrangements with the Governor-General under this Act. The second key provision is sections 10 and following take the subject of marriageable age away from the States and beyond the common law and rationalise the differences. That is the code.

The third matter is that section 22 slightly extends the application of the prohibited degrees issue that it remains fully regulated at federal level. Then if we come to Part IV, “Solemnization of Marriages in Australia”, Division 1 is a scheme whereby there will be a single set of celebrants for marriage in Australia under a federal scheme. The role of the States under section 28 might be to transfer their registers if they desire. Then let me come directly to section 40, which is of some importance. Section 40 says subject to what follows the Division applies “to all marriages solemnized, or intended to be solemnized, in Australia”.

That statement means that if a union of two persons is to be solemnized as a marriage with all that will follow under Australian law from it being a marriage it must be done through this means if it is done in Australia. This is the code for how marriage is solemnized in Australia. Another aspect of it your Honours will see is that although this is dealing with form, it is form designed to verify substance. It is form designed to ensure that the only marriages which do end up being solemnized are ones which do comply with the essential requirements for marriage. So one might see in section 42(1)(b) the need to state your date of birth will assist with ascertaining marriageable age.

Under 42(1)(c) you must declare your conjugal status. Your conjugal status would be whether you have been married and, if so, how it ended, and so that is designed to verify that we will not have married as people who already are in a married status and, likewise, you must declare the legal impediments. When one comes to what must be said at the form of ceremony in section 45 there is a bifurcation. If it is a minister of religion, it is in accordance with the religious body. If it is an authorised celebrant, it is sufficient but not necessary to use the words “I take you to be my lawful wedded wife” or vice versa “husband”.

Now, in those sufficient words the concept that is embodied is man and woman, husband and wife, and so here we see the forms of the ceremony verifying that the essential requirements uniform across the whole of Australia will be made out. And then perhaps it is put even more starkly in section 46. In a case where it is an authorised celebrant as opposed to merely a minister of religion, certain words must be used – these are mandatory:

“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

Now, no doubt when one traces through section 48(1)(e), a failure to say those words will not per se invalidate the particular marriage. But why is it that those words have been required to be said at every marriage in Australia? The obvious purpose, as revealed by the words, “Marriage, according to law in Australia” is to make clear that this is the single rule which governs all marriages in Australia.

Now, the intervener and perhaps the ACT would say, it does not mean that. All it really means is marriage according to the law in Australia as regulated by this Act but otherwise not so, or not necessarily so, is a union between a man and a woman and so on. Now, that is a highly contorted twisting of the language and what I am seeking to point your Honours to is here we can see in the very text governing the form of the ceremony the embodiment of the notion that there is one form of marriage for Australia.

I will just observe, your Honours, that Division 3 governs the limited circumstances in which foreign diplomatic or consular officers will be permitted to marry persons in Australia who are not Australian citizens. This is part of this notion I mentioned earlier that a Marriage Act has to have an international focus of determining what our relations are with other countries and it is tolerably clear that the marriages which can be solemnised under Division 3 are marriages which have the essential elements of section 46. Then, if your Honours would go to Part V, commencing at section 60, this is what happens when there is to be solemnised outside Australia, another aspect of international focus. Section 65 confers the power and section 69(2) requires the critical words to be said consistent with section 46:

“Marriage, according to law in Australia, is the union of a man and a woman –

and so on. So, whether it occurs here or whether it occurs by permission overseas, the singular nature of Australia’s approach to marriage is evident and is to be emphasised.

There are certain other reflections of marriages – husband and wife or man and woman, for example, section 77(1)(c), 78(1), 78(2)(a), 89(3)(a), 90(1)(c) and (d). So it is not just in the words that must be said in the ceremony, it is embodied in the text of a whole variety of provisions that this is essential to marriage in the law of Australia – the bigamy offences in section 94. Then, if I could conclude with sections 111 and 113 – 111 builds on everything that has gone before which is that if it is solemnised under Division 2 of Part IV in Australia, and if it is valid as per this Act, it is valid in all the Territories of the Commonwealth.

Your Honours, finally, section 113 – this governs second marriage ceremonies and in general there cannot be such. There is an exception under subsection (2) if there is a doubt. But the other exception, which is subsection (5), is explained by Sir Garfield’s article in the Melbourne Law Review which we have provided the Court a copy of.

He was particularly concerned about polygamy and the possibility that a celebrant of one particular faith might, by pronouncing the right, have authorised a polygamous marriage which could not sit with the rest of the Act. This is the article in 1962 Melbourne University Law Review 278 at pages 293 to 294. The effect of what he permitted was that the persons would go through the civil ceremony first, which would comply with the Act and would be non-polygamous, and then by reason of subsection (6), the religious celebrant would not be able to issue any certificate of marriage so that no polygamy would infect the marriage. We refer to that provision as yet another instantiation of the notion that, under this Act at least, none of the elements of Hyde v Hyde were open for variation by any other laws in Australia.

Your Honours, to summarise the position that was reached by 1961, there are essentially three propositions that emerge from these two Acts together. The first is the only continuing role for the States was in the area of registration of marriage. Secondly, apart from that matter, there was a single line established between married and unmarried set solely by the federal laws and a single system for matrimonial causes for Australia. Thirdly, in formulating the uniform laws, the Parliament identified the essential and formal characteristics of marriage which were not to be open for variation under the law of Australia. Your Honours, the third piece in the jigsaw puzzle is the 1975 Family Law Act and the - - -

FRENCH CJ: Encapsulating what you are putting about the Marriage Act, though, one has to speculate in terms of statutory purpose. It is a statutory purpose of the Act on your submission that the status of marriage will only be attached to a union by operation of Commonwealth law and secondly, that the status of marriage shall only be attached to a union of a man and a woman?

MR GLEESON: Yes, the second proposition being one of a number of corollaries from the first proposition. The status is also not to be attached, for the time being, to trial marriage or to polygamous marriage or to involuntary marriage or to marriage of persons under marriageable age or to marriage of persons in prohibited relationships. So if you ask the question who can a person marry, the sole answer is in the federal laws and there are three particular answers that are restrictive of that question. A man and a woman can marry but you cannot marry a person if it is not man and woman. You cannot marry a person under age and you cannot marry if the relationship is prohibited.

As your Honour has put it to me, our argument stands and would fall on that order of propositions. The first question is, is the statutory purpose – this is the sole place where you find the answers to the questions. That is partly where the difference between the parties - if the intervener would start, as it were, at a second order level and say “Well, when I read this Act I see man and woman, husband and wife, all through it. Therefore, that is all you intend to regulate”, that is to start having assumed away the critical question.

Your Honours, what I would seek to take from the Family Law Act that is relevant to today is - the early second reading speech commences at page 539 and at 540, second column, one of the critical points being made by Senator Murphy was that his liberalisation of the grounds for divorce was designed to buttress rather than undermine marriage and the stability of marriage. There is an intertwined connection between the grounds we recognise for divorce and what is the institution of marriage that we are giving legal recognition to.

The second observation is there is no doubt he and those at the time were thinking in terms of husband and wife only. That is apparent from 541 at the top of the page and all down the left-hand column. At 542 in the first paragraph near the end he explains that the void marriages provisions will end up being in the Marriage Act and that occurred but in 1976. Then the next paragraph on 542 explains where Senator Murphy sought to expand the matrimonial causes and where the court in Russell v Russell only partly confirmed the validity to that approach. The attempt to completely sever the secondary causes from the primary causes was held not to be completely effective in Russell v Russell, but your Honours can see in that paragraph Senator Murphy says:

Except in relation to divorce, these matters are presently dealt with by uniform State and Territory laws. The Bill covers as much of this field as is constitutionally possible.

It turns out it went a bit far. What is here being recognised is that where the matrimonial causes end under the federal scheme and one is in an area where there is an insufficient connection to marriage then there may be room for the States but not otherwise. Husband and wife is reflected at 542, right-hand column, last paragraph and at 544 in the first paragraph he identifies the new provision “to obtain a declaration as to the validity of a marriage”. Previously, one could have validity of a dissolution, but now there could be validity of a marriage. That is quite important in our inconsistency argument.

So, your Honours, in the text of the Family Law Act commencing at page 482, I will start again with section 8. That is our key provision, giving no room to the States or the Territories to legislate for matrimonial causes. The matrimonial causes are on page 484. They have been reduced to “dissolution of marriage” and “nullity of marriage”. They are then extended to declarations “as to the validity of a marriage or . . . dissolution or annulment”, and then there are the secondary matrimonial causes which at least as drafted have been untethered from the proceedings for principal relief. Your Honours, that provision for declaration as to validity is in section 113.

HAYNE J: What page?

MR GLEESON: Page 530. We have provided your Honours in supplementary materials the decision in the Marriage of Kapadia 14 Fam LR 883, a decision of Justice Kay. The relevance of the decision is that his Honour correctly held that section 113 would allow a declaration – a negative declaration, as it were – that something was not a marriage which did not comply with the formal or essential requirements of the Act, even though it was not dealt with in the void grounds.

Your Honours might pick it up on the foot of page 885. There is a reference back to the decision in In the Marriage of C and D where the case involved one of the parties being a hermaphrodite and proceedings were sought for declarations as to validity or nullity. Over the page, Justice Bell in that earlier case “concluded that it was not a relationship between a man and a woman”, then went on to say, “marriage in the true sense of the word” as referred to in the definition in section 46 “could not have taken place and does not exist”. So thus far correct:

In those circumstances –

It is ordered:

1. That the Application for declaration of validity of marriage is dismissed.
2. That a Decree of Nullity is pronounced.

In about the middle of the page, Justice Kay says that was the right decision but the wrong remedy. His Honour is saying that is the only procedure available to the parties, that is, a nullity suit on the ground of voidness. I disagree with him:

It seems to me that the Family Law Act provides two distinct options (and probably a third one, do nothing). If there is no marriage, there is no marriage. If the marriage is void, there is no marriage. If the parties do not have the capacity to contract the marriage, there is no marriage. If the parties are not of opposite sex, there is no marriage.

If the ceremony is part of a charade . . . there is no marriage.

Then the position was correctly stated by Sir Percy Joske and it is consistent with Professor Dickey in his article. That obiter statement about “if the parties are not of the opposite sex, there is no marriage”, we submit, is correct. So what would happen is that in the circumstance that parties purported to go through a ceremony of marriage in Australia where they were not man and woman, husband and wife, a declaration would be available under section 113 of the invalidity of that purported marriage and that is even though it does not fall within the grounds of void marriages.

We have developed that in our reply submissions, your Honours, that there are then marriages, there are void marriages and there are marriages which are for some other reason no marriage at all and they are dealt with by a declaration as to validity or invalidity, the consequence of that being it generates one of the inconsistencies that the ACT Act would authorise the ACT Court to declare the validity of an ACT same-sex marriage whereas the Family Law Act would authorise the Court in federal jurisdiction to issue a declaration of invalidity.

The other provisions in the Act - the question of polygamy that I adverted to earlier is dealt with in section 6, which picks up the 1965 Matrimonial Causes (Amendment) Act. For the purpose of proceedings under the Act, but not otherwise, a union in the nature of a marriage that is or has been polygamous, if entered outside Australia, is deemed to be a marriage. So that keeps the dividing line between married and unmarried clear and singular.

It recognises, as a matter of international relations, there may well be polygamous marriages in countries of persons who come here and, for the purposes of the matrimonial causes, there is a deeming provision they apply as if. That has clearly evinced again the intention that to the extent things which are marriage like but not marriage are to be given recognition under the law of Australia, you will find the answers in this Act.

Then the jurisdictional provisions are in section 39. One of the amendments to the Matrimonial Causes Act is seen in 39(3) which is a further expansion of the grounds of Australian jurisdiction, not just domicile but citizenship, domicile or ordinary residence for one year. Again, dissolution of marriage is dealt with by a common set of jurisdictional requirements across the nation.

We then come to section 43, which is a command to the Family Court and, indeed, a command to any court exercising jurisdiction under the Act. So it would include the ACT court when exercising jurisdiction under the Act to have regard to:

the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life –

and then to have regard to certain other matters. Now, that mandatory consideration placed squarely before all courts exercising jurisdiction under the Act only makes sense if one recognises – that is, the singular concept of marriage recognised in the law of Australia. In effect, what sections 45 and 46 of the Marriage Act require to be said at the ceremony is then reflected in the very mandate that the courts must keep at the centre of their attention. It would just be totally inconsistent with that to say well, look, all we really mean is that is true if you are being asked to deal with our sort of marriage, but beyond that there can be as many other types of marriage as other polities think appropriate.

In terms of the deeming provisions of the Act, section 60 and then section 71 continue the concept of deeming that for the purpose of particular causes, firstly, welfare of children and then maintenance and property, marriage will include a void marriage. A void marriage in section 51 is void on the grounds we have seen. So again the line between married and unmarried is kept singular. For the purpose of particular causes, void marriages will be treated as if they were marriages but not otherwise.

So, for example, with the overseas polygamist union it is deemed to be marriage for all purposes under the Act, whereas these are deemed to be marriages for some purposes. And then the final aspect that follows is that something which simply is not a marriage at all, such as a same-sex marriage or a trial marriage or a polygamist but non-bigamist – if that is a sensible expression – marriage entered in Australia, do not get the deeming provisions of Part VII and Part VIII. So the deliberate decision that has been taken is for those forms of non-marriage, they do not get the extension of these particular matrimonial causes and, accordingly, what is left free to the States and the Territories is that they can regulate those unions, provided they are not accorded the status of marriage, and rights can be extended to the parties to them on whatever basis States and Territories consider, such as on a basis as if they were a marriage but they cannot make them marriages, so the three types of marriages which do not get the benefit of Part A to the three types I have just mentioned.

The reflection of husband and wife or man and woman appears in various other places, section 75(1)(l), and so what then has the Family Law Act added to the composite picture built up by the two preceding statutes? There is really four points in summary. First, that section 43 has buttressed the singular nature of marriage recognised by Australian law. The second is that the available matrimonial causes have been extended to certain non-marriages on a deeming basis which keeps the divide between married and unmarried untouched. The third is that subject to Russell v Russell there has been an untethering of the secondary matrimonial causes from the primary relief. And the fourth is that the declarations for validity enable the court expressly to deal with those marriages which are not marriages at all and the purpose of that is to – as with any negative declaration – to establish legally that something is not true and that is a further confirmation of the singular nature of the scheme.

KIEFEL J: What about the consequences that the Family Law Act attaches to marriage such as section 61, parents become a guardian; sections 72 and 73, liability to maintenance; et cetera?

MR GLEESON: I think I was trying to capture them in my third point that the scope of the matrimonial causes, by being largely unhooked from proceedings for principal relief, has produced the result that, certainly in the case of welfare and in the case of maintenance, once you have parties to a marriage the court immediately has the jurisdiction to deal with these issues and in that sense it is a more comprehensive dealing with the institution than before, but only serving to confirm again, if there is to be such a set of causes, this is the place one finds them.

CRENNAN J: I suppose Russell v Russell following the first Marriage Act indicated that the scope of paragraph 21 was not limited by the concluding words in paragraph 22 and this legislation creates a clearer - - -

MR GLEESON: Yes.

CRENNAN J: - - - distinction, perhaps, in the operation of the powers.

MR GLEESON: Yes, and it is a much clearer divide between the principal - - -

CRENNAN J: Clearer divide, yes - - -

MR GLEESON: - - - the principal relief and all the other relief and in many cases such as maintenance and welfare the other relief needs nothing more than the marriage and then in some cases it needs to have some ancillary connection to principal relief.

The scope of the matrimonial causes has been taken further that is clear, but the underlying structural concept that if there are to be causes concerning the state of marriage in Australia, you find them here, that is simply further embodied.

Your Honours, the final piece in the structure is the 2004 amendment. It is our proposition that the 2004 amendment did not in any way detract from the structural nature of these Acts as reflecting the purpose that I have identified. If anything, the 2004 amendment was directed to a slightly different target even though it casts some light upon today’s issues. The terms of it are at page 569. The definition is inserted in section 5 following the Hyde v Hyde definition and then in section 88B, dealing with recognition of foreign marriages, it is expressly provided that within this part, to avoid doubt, give marriage its defined meaning and you cannot recognise a foreign same-sex marriage.

Why was it doing that? It was not because there was a doubt in 2004 about today’s topic per se, namely, did the Commonwealth Acts provide the sole answer to these questions? The doubt may have been whether, within the framework of the Commonwealth Act, it might now be possible to treat a same-sex marriage as a marriage within the Act, either that because of a more contemporary view being taken of the nature of the union or because of the factual presence of overseas same-sex recognised marriages and people coming here you could, within the Commonwealth Act, get recognition for same-sex marriage. The purpose of these changes was to say to avoid doubt that is not the case. You cannot put a same-sex marriage through the parameters of the Commonwealth Acts.

Now, when I say that is the target, I say that for two reasons: firstly, by inference from the decision given in the previous year, that is 2003, in the Attorney-General (Cth) v Kevin - I will just give your Honours the reference and a copy of it for later. It is in [2003] FamCA 94; 30 Fam LR 1, the Attorney-General (Cth) v Kevin - - -

FRENCH CJ: Why are we getting into this?

MR GLEESON: To explain the object of the 2004 Act.

HAYNE J: The object, in what sense, Mr Solicitor, what the Minister introducing it had in mind or what the Act says according to its terms?

MR GLEESON: What the Act says according to its terms, and I am identifying a mischief which the Act reflects, and I will not belabour the case, I will just put the submission and move on. The submission is that what the Act reflects in its terms and the mischief identified is lest there be any doubt whether a marriage which was not between a man and a woman could be solemnised in Australia under the Commonwealth Act or if solemnised overseas could be recognised here, that is not to be so.

FRENCH CJ: Well, it did say the definition was declaratory.

MR GLEESON: Yes. Your Honours, I have reached point 4. Those elements that have emerged from those four Acts building upon each other are now found in the two Acts enforced today. The most convenient way to just summarise that proposition might be just to itemise for the Court where one finds in the current Acts the key indications of this being the single scheme for Australia. In volume 1 in the Marriage Act as now in force, the definition in section 5 has the work I have identified - - -

HAYNE J: What page? Where are you?

MR GLEESON: Page 12. The definition in section 5 has the work I have identified. Section 6 is the provision saying the only scope for States to legislate in the area of the institution of marriage.

FRENCH CJ: We have gone through this. You have identified a statutory purpose and - - -

MR GLEESON: Yes. Just let me see whether there is anything I can – perhaps I should just bring it together this way, your Honours, then I have completed that part of the topic. That having done the entirety of that exercise, the critical proposition is that in paragraph 5 of our outline and the two Acts do not leave it open to other legislatures to recognise other forms of marriage.

They do not permit the boundary between married and unmarried to be radically uncertain and they contain a strong negative implication that marriage is a genus not subdivisible into multiple species and, pulling together elements this morning that I have attempted to put forward by way of construction, they have involved, firstly, the subject matter with which the Acts are dealing, a matter of status; the purpose for which the power was given which is then carried forward into the text; thirdly, the evident mischief which would only be addressed if the Acts have the effect we contend for; fourthly, the comprehensive nature of the regulation involved and fifthly, the lack of any intention to permit there to be segregation across Australia on State or Territorial lines.

Your Honours, in that last proposition – and I will come to this fairly shortly – but GPAO, which is one of the cases we need to address on the question of section 28 - in GPAO 196 CLR 553 in the judgment of Chief Justice Gleeson and Justice Gummow, at paragraph 57 - - -

FRENCH CJ: Page?

MR GLEESON: At page 581. Their Honours said:

There may be discerned in a law which is of general application throughout the nation and is made by the Parliament in exercise of a power conferred by s 51 of the Constitution the legislative intention to make exhaustive or exclusive provision on the subject with which it deals.

Then there is a reference to section 109:

In such a case, it is to be expected also that this field will be covered with respect to the territories.

So a law which appears exhaustive and exclusive would ordinarily operate in such a manner for the States and the Territories -

For example, one would be slow to attribute to the Parliament the intention that a law with respect to defence would occupy two fields and, in that sense, operate differentially across Australia, or that a law with respect to marriage would segregate the population by a criterion of residence in a territory rather than elsewhere in Australia.

That proposition that one would be slow to impugn an intention, that Parliament has intended to either segregate itself or, as per the argument here, to permit such segregation as other polities advise it from time to time is one that we would embrace.

FRENCH CJ: That might be a convenient moment, Mr Solicitor. The Court will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Your Honours, there are three final matters left of significance on our outline. The first is point 9 which is to look more closely at the Marriage Equality (Same Sex) Act (ACT) to ascertain the inconsistencies. The second which is point 11 is to deal with the legal construction of section 28, and the third which is point 12 is to identify the mischief that returns if the ACT Act lives. Your Honours, in the form of the Act in volume 1 at page 223.

HAYNE J: Sorry, 2?

MR GLEESON: 223. The effect of the Act is to create a form of marriage which will be equal with marriage under the Commonwealth Act, at least for the purposes of the law of the Territory and potentially elsewhere in Australia. Apart from the title, which says it all, that is implemented in the Act by way of section 6(a) which identifies the marriages that it is to apply to. Section 13, a form of marriage where the parties say:

‘I call on the people here to witness that I . . . take you . . . to be my lawful wedded –

and then optionally “spouse, husband or wife” whichever - - -

FRENCH CJ: When you say equal to marriage otherwise recognised by the law of Australia what are the dimensions of that equality?

MR GLEESON: That this is a species of the larger genus of equality, such that for any legal rule in Australia which operates on marriage, persons married under this Act are in the same position. That is one aspect of it. Then the other aspect of it is, within the Territory, any person married under this Act has a status equal to any person married under the Commonwealth Act.

HAYNE J: Well, is the proposition that the personal union or relationship thus formed is of the same content and quality?

MR GLEESON: Yes, and that is evident in section 13(2) and then section 14 in the words that are said to formalise the marriage. It would appear that the words used in the Commonwealth Act, “husband and wife”, are now available for use under this Act. Section 14 makes it clear that a marriage has been solemnised and one only needs to line up the statement in section 14 with section 43 of the Family Law Act and 46 of the Marriage Act to see the purported equality that has been generated by this Act.

The mischief which is sought to be addressed is essentially this, that the federal Act has established certain criteria of eligibility which we regard as discriminatory in their reach and we propose to remedy that discrimination by our expanded categories of eligibility for marriage in law. That is the “alter, impair or retract” that is being applied to the federal scheme. That, I submit, emerges from the text of the ACT Act and the text amply reflects what the Attorney-General at pages 285 to 287 put graphically as being the purpose of the Act. It is a “bill about equality”. It says that:

people in a same-sex relationship are able to have their love and commitment to each other legally recognised in the same way that people in a heterosexual relationship are able to through a legally recognised marriage.

Then at the foot of the page:

the legal recognition of a relationship through marriage is not denied to hundreds and hundreds of couples in our city living together in loving and committed relationships simply because of their sexuality.

Then there is some further discussion over the page on that topic. So that is the general level at which the inconsistency arises and we put that in three ways as per paragraph 9 of the outline and as per our written submissions.

Could I then deal with the three more specific inconsistencies? The first is 9(d). This hinges off section 33. As I mentioned this morning, there is the ability to automatically end your ACT marriage by either entering the marriage under Commonwealth law or a same-sex marriage in another jurisdiction and thereby - - -

HAYNE J: Why do we get to this point?

MR GLEESON: We do not need to, your Honour.

HAYNE J: If the formation of the marriage is inconsistent, the methods of its termination are not to the point, are they?

MR GLEESON: Your Honour may well be correct.

HAYNE J: Is there some alternative case being put, Mr Solicitor?

MR GLEESON: No, no. The case being put is that the formation is inconsistent as to essential and formal requirements of validity of marriage.

FRENCH CJ: Is that in part because – going back to the question that I put to you about statutory purpose – it is inconsistent with the statutory purpose, the purpose of the Marriage Act, to attach to the union of people of the same sex a status of marriage?

MR GLEESON: Yes, yes. That is the core argument, so far as the inconsistency with the Marriage Act occurs and also with provisions such as section 43 of the Family Law Act. It is not an alternative argument but it is an additional argument that there is an inconsistency here with the Family Law Act, insofar as it provides for the method of termination or dissolution of marriages in Australia.

HAYNE J: But if the formation is not inconsistent, why would the difference in method of termination to be of any moment?

MR GLEESON: It is additional, not a strict alternative, your Honour. That same characterisation arising from your Honour’s question would apply to our next point which is 9(e) which is a further more specific problem that arises in respect to the Family Law Actinconsistency.

We would say one of the statutory purposes of the Family Law Act is that persons who are parties to marriage or to unions, which the federal law deems to be sufficiently marriage-like, have access to the matrimonial causes jurisdiction of the Family Law Act in accordance with its terms. So that if one enters marriage in Australia, one has the certainty that there will be such matrimonial causes available to all marriages. Some of those matrimonial causes, as we have seen, hinge off the fact of marriage alone and Justice Kiefel asked me about the extensions under the Family Law Act referable to the earlier Matrimonial Causes Act.

Let us take maintenance for instance, that if parties enter a marriage, they are entitled, they have the certainty of knowing they will have the maintenance jurisdiction of the Family Court in respect to that marriage. What the ACT Act does is create a radical uncertainty as to whether if you go through an ACT marriage, you will in fact have access to such matrimonial causes jurisdictions and, if I could just explain why. You will not have access to that jurisdiction under the provisions of the Family Law Act which apply to marriages or void marriages.

Whether you have access to an equivalent jurisdiction under the de facto relationships part of the Family Law Act, will depend upon whether your ACT marriage is classified as a de facto relationship for the Family Law Act which it may or may not be and you may not have any de facto relationships jurisdiction under the Domestic Relationships Act 1994 (ACT), again depending on variations.

Your Honours, the sixth of the inconsistencies, paragraph 9(f), I would submit is not in the category that Justice Hayne put to me concerning (d) and (e). It really turns back on the original question of formal and essential requirements for validity, and the provision I took you to this morning for declarations as to validity would authorise the federal jurisdiction exercise in court to declare something to be a non-marriage which the ACT court would declare to be a marriage.

Your Honours, the second-last main topic then is to just deal with section 28 of the ACT (Self-Government) Act. Could I go to the Act first and then to the authorities? We get to this on the assumption that the federal Acts embody the statutory purpose I have identified and they are Acts prior in time to the ACT (Self-Government) Act and they are also, if it matters, Acts later in time by reason of subsequent amendments to those Acts which have affirmed them. So within the ACT (Self-Government) Act the critical sections are 7, 22 and 28, and under section 22:

the Assembly has power to make laws for the peace, order and good government of the Territory.

We would submit that that power is not to be construed as being so extensive as to allow the Territory to pass laws which alter, impair or detract from a Commonwealth law which has uniform and exclusive operation across Australia. Such a law would be – to use earlier language – repugnant to the grant of the power.

The second section is section 28, which is a provision denying effectiveness to laws to the extent of the inconsistency, and we are told that the measure of inconsistency is the capacity to operate concurrently. In the case of a federal law embodying the statutory purpose I have mentioned there is no scope for concurrent operation. If the Commonwealth law has the purpose I have mentioned there can never be a Territory law which is capable of operating concurrently and section 28 cannot do anything to save that law.

The area where section 28 might have some operation is where one does not have a federal law which operates in a uniform fashion across the entire country and a federal law which has deliberately left open scope for Territory or State laws to operate side by side with it. That is an area which in some of the older language, although now it is perhaps disfavoured, one would see direct inconsistency in a section 109 context, and in that area of potential direct inconsistency this question of capable of operating concurrently has its work to do.

One thing which is critical to section 28, in our submission, is that it does not of itself or otherwise alter the meaning of existing or future Commonwealth laws. If the Marriage Act (Cth) has a meaning, has a scope and a reach, this later federal Act does not alter the meaning of the Marriage Act for the ACT. It still has the same meaning for Australia and if there was a later Marriage Act which is exhaustive and exclusionary in the way I have mentioned, its meaning is not changed by section 28. Your Honours, in terms of the cases - - -

HAYNE J: Section 28 in terms is directed to a provision of an enactment, that is to say, an enactment of the Assembly.

MR GLEESON: Yes, and its effect, to the extent it may allow reading down, might be reading down of an enactment of the Assembly so that it can have its possible concurrent operation. What it is not designed to do is to alter the effect of a Commonwealth law, before or after.

HAYNE J: The deeming undertaken by shall be taken to be is in respect of such a provision. What is “such a provision”, a provision of an enactment?

MR GLEESON: Yes, that is our submission. In terms of the authorities, the case that is put for the ACT hinges on, with respect, a misreading of GPAO 196 CLR 553 that I mentioned just before the adjournment. The paragraph the ACT proclaims is paragraph 60 in the last sentence. The reason that the ACT has, with respect, misread that sentence is for this reason. I have taken your Honours to paragraph 57 where there is a discussion of Commonwealth laws which are intended to operate exhaustively or in an exclusive fashion on a subject across Australia. That is where their Honours said you would be very slow to attribute an intention that the law operates differently in the Territory to how it does elsewhere. Paragraph 59 then dealt with a different case which is where the law made by the Commonwealth Parliament:

does not evince an intention to cover the relevant field -

using that language now perhaps disfavoured -

In such cases, one would expect greater scope for the concurrent operation of territorial laws. This would correspond with the situation respecting State laws, if narrower notions of textual collision or direct inconsistency and repugnancy be applied.

If we have a law, not like the present one, on our view, a law where the Commonwealth has not legislated exhaustively, then we might be in the field of direct inconsistency. There may be greater scope for concurrent operation of the Territory law and that is a field where one might see section 28 have some real work to do. Those having been identified as two different cases, the critical language at the end of paragraph 60, the foot of the page says:

It will be apparent that s 28 operates not as a denial of power . . . but as a denial of effect to a law so made “to the extent” of its inconsistency.

Correct -

To that extent, the analogy with s 109 will be apparent.

Correct. Then, the critical sentence:

However, the criterion for inconsistency – incapacity of concurrent operation – is narrower than that which applies under s 109 -

The “narrower” there is clearly enough a reference back to paragraph 59. So that in the case where the law does not cover the field, the federal law, and we are then in the narrower area of looking for direct inconsistency, then section 28 may have its field of practical operation.

With respect, their Honours were not intending to say that in the category dealt with in paragraph 57 covering the field that section 28 somehow speaks to the Commonwealth law and requires it to be read down so that it loses its exhaustive character. That is the essential issue between the parties on section 28. If we are correct on that, then the test for inconsistency will be for present purposes the same as would apply in a section 109 case. If we are correct, no State can pass an Act in this form, nor can the Territory.

In respect to the section 109 tests, it is convenient simply that I reference without going to the detail again of the Court’s most recent discussions in Jemena Asset Management v Coinvest [2011] HCA 33; (2011) 244 CLR 508, and equally in Momcilovic v The Queen (2011) 245 CLR 1, particularly in Momcilovic in the judgments of your Honour the Chief Justice at 111; Justice Gummow at 240 through to 276; your Honour Justice Hayne in dissent that on the points I am seeking to make about the correct approach to section 109 to similar effect, paragraphs 314 through to 340, particularly 340 on page 141 where your Honour said:

The fundamental question remains whether the State law alters, impairs or detracts from the Commonwealth law.

Your Honours Justices Crennan and Kiefel relevantly to similar effect at paragraphs 628 through to 656. As your Honours expressed it at 656 on page 239, in that case “there is nothing in the nature or subject matter” of the offence “or in the express terms” of the Commonwealth Act “which implies or supports the conclusion that the purpose . . . is to exhaustively cover” the identified “subject matter”. The Commonwealth Code intended to permit parallel schemes.

Your Honours, finally on that question of law, the discussion in the Kakariki, The State of Victoria v The Commonwealth (1937) 58 CLR 613, has now been treated as of great significance in the refashioning of section 109, particularly Justice Dixon at page 630, and that is a passage we would embrace as applying to both the present context and section 109. I would also observe that what Justice Evatt said at page 638 is in point, where his Honour said that a particular view was:

consistent with the presence in some Commonwealth laws, such as those dealing with bankruptcy, patents and trademarks, of provisions which terminate the operation of previously existing State laws. There the subject matters practically permit only one system of law and one system of operation.

They are the provisions we have between section 6 and 8 in the Marriage Act and in the Family Law Act terminating the operation of the State laws. We have also provided your Honours with Stock Motor Ploughs v Forsyth [1932] HCA 40; (1932) 48 CLR 128 at 147 where at point 3 what Justice Evatt said about “cover the field” we submit is consistent with the modern approach. He said:

It is no more than a cliché for expressing the fact that, by reason of the subject matter dealt with, and the method of dealing with it, and the nature and multiplicity of the regulations prescribed, the Federal authority has adopted a plan or scheme which will be hindered and obstructed if any additional regulations whatever are prescribed upon the subject by any other authority; if, in other words, the subject is either touched or trenched upon by State authority.

Your Honours, the third and final topic was – and I touched on it briefly this morning – one can test the nature of the impairment or the detraction by asking what is the effect under the law in other States or, indeed, Territories of the fact that the ACT is now purported to recognise these unions as a marriage. The position accepted by the ACT Attorney in Parliament in volume 1 of the materials at 287, last paragraph, is he does not know. He said:

Couples who wish to marry in the ACT will need to travel to the ACT to satisfy notice requirements. It is the case that marriages solemnised under this act may not be recognised outside of the ACT.

He does not expect that will discourage people from choosing the ACT. It is not simply a case of doubt. What can be said on the topic is that inevitably there will be a need to re-invent some form of jurisdictional or conflict of laws rules in the other States and Territories and, indeed, in federal courts to ascertain what effect to give to the ACT marriage.

Can I just give these examples? Firstly, assume people domiciled and resident in New South Wales travel to the ACT to marry and then return home and otherwise have no connection with the ACT, would New South Wales law recognise the marriage? Would it develop a jurisdictional or conflicts rule based on the lex loci? Would it create an exception for a form of marriage not recognised under the Marriage Act or the common law of Australia? The answer, simply, cannot be known. Then, the second example, and the last one, is divorce. Assume the persons wish to divorce; presumably they travel to the ACT to seek the divorce.

Section 23 of the ACT Act provides the Court with jurisdiction and does not have an express conflict of laws provision in it, if it means anyone who married here can divorce here. Nevertheless, when the persons return to, say, New South Wales, by what jurisdiction or conflicts rule does New South Wales decide whether this marriage has come to an end. The old rule used to be largely domicile, sometimes domicile plus residence. If those rules are re-invented, then it may be the New South Wales Court says we do not give effect to the divorce. If that happens, the person is married in the ACT – married and divorced – whereas in New South Wales it may be the person has the opposite status and we have returned the full circle to the very vice that the founders sought to alleviate. If your Honours please, they are our submissions.

FRENCH CJ: Yes, thank you. Yes, Mr Solicitor.

MR GARRISSON: May it please the Court. Your Honours will have the defendant’s outline of oral argument. I propose to address points 1 through 5 in relation to that and my learned friend, Ms Eastman, will address points 6 through 12. By way of preamble, section 28 has been described to your Honours by my learned friend, Solicitor-General for the Commonwealth, but it has been addressed as a single section in an Act.

What of course is in important, your Honours, in construing that Act is to have it in its proper legislative and constitutional context. In order to understand the language of section 28 and its effect, one has to have regard to its specific context and this goes to the relationship between the Australian Capital Territory, as a self-governing Territory, and the Commonwealth, as between a superior legislature and an inferior legislature.

In the Self-Government Act there is, or was, until 2011, a fairly clear scheme in relation to the interaction between Commonwealth laws and Territory laws. There were originally certain ordinances that were in existence at the time of self-government became enactments. That is in section 34(5) and in particular in relation to the Commonwealth determining what it is that the Territory could or could not do, aside from having been granted plenary power under section 22, there were carve-outs from that power.

The Commonwealth was able to clearly turn its mind to those matters upon which it did not wish the Territory to legislate and indeed, since self-government, there have been amendments to the Self-Government Act to reinstate some provisions which were not there permitted, for example, in relation to courts, in relation to certain classes of corporations and, indeed, other matters have been carved out and in particular, the euthanasia laws. Their Honours, Justices Gleeson and Gummow, deal with that briefly in GPAO at paragraph 54 on pages 580 to 581.

The Crown in right of the Commonwealth also has an immunity from Territory laws in section 27, that is, the Commonwealth is subject only to those Territory laws that are set out in the schedule to the Self-Government Act or which is made by regulation.

More particularly, section 35 of the Act as made provided the Governor-General with the power of disallowance in relation to any Territory law. That provision was removed by amendment to the Self-Government Act or both Self-Government Acts, that of the ACT and the Northern Territory, in 2011.

The other mechanism that is available to the Commonwealth, of course, is to pass a law. It can withdraw or add powers to the Territories as it sees fit. It can exclude topics for legislation. It can override legislation that is passed by Territory legislature and, indeed, the Commonwealth did so with the euthanasia bill by which both the Northern Territory Act was given no effect and the Self-Government Acts of both the Northern Territory and the ACT were amended to their present form.

That capacity to change laws combined with the power of disallowance given unhindered to the Commonwealth comprised the scheme for self-government for the ACT. The fact that it has subsequently had one element of it changed, namely, the repeal of section 35, still leaves the ACT in the position of an inferior legislature where the Commonwealth can, should it so desire, pass laws to overturn, change laws or, indeed, remove the power to make laws of a certain class. The power of disallowance, of course, has only been exercised once, and it was exercised in 2006 to overturn the ACT’s Civil Unions Act. It has not been used before and has not been used since.

The nature of section 28(1) and the fact that it must have work to do other than simply a reprisal of section 109 is further emphasised when one looks at where the ACT is. The ACT is the seat of government. There is significant overlap with the Commonwealth, both in terms of geography, activities within the ACT and its interests. There are embassies being run and administered under Commonwealth law, there is the parliamentary triangle, there is national institutions, and in relation to that the day-to-day interaction of Territory laws with the activities of the Commonwealth are those who are with the Commonwealth lead one to the conclusion that a test other than 109 and those tests that are associated with it are appropriate when one is looking at inadvertent conflict between Territory laws and Commonwealth laws.

The first limb of section 28(1), speaks to the effect of inconsistency. As the Solicitor-General for the Commonwealth has commented, it is not directed towards the power to make law but it is operative effect. That is at page 582 in GPAO, paragraph 60. That was subsequently re-affirmed in Re Governor, Goulbourn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at paragraph 75.

The Territory concedes that the first limb may incorporate the obligation for a reading down of the Territory law. There is no question that in determining consistency between a Commonwealth law and a Territory law, as they operate in two different planes, that the Commonwealth law is in any way going to be read down. However, it is critical in determining inconsistency, that the Commonwealth law is properly interpreted.

HAYNE J: Does section 28 speak at all to the interpretation of the federal law?

MR GARRISSON: No, it does not, your Honour.

HAYNE J: So, you interpret the federal law without taking any account of section 28?

MR GARRISSON: Correct, your Honour.

KIEFEL J: What do you mean, then, by paragraph 2(b) of your outline? Where you say section 28 is a constraint:

only where that law is not capable of operating concurrently . . . and

notwithstanding that the Commonwealth law might otherwise be read as intended to cover the field.

MR GARRISSON: That goes to the interpretation as to whether our law is in conflict with the Commonwealth law as properly construed.

KIEFEL J: What is the starting point, though? I took it from what you said in answer to Justice Hayne that you would interpret the Commonwealth law first.

MR GARRISSON: Yes, you would, your Honour, and our case will be – and my learned friend, Ms Eastman, will be addressing the question of the interpretation of the Commonwealth law in more detail – is that one starts with the construction of the Commonwealth law and, having then properly construed it, then determine whether the Territory law, if needs be read down, can operate concurrently with it. That goes to the level at which the Commonwealth law is touched, so to speak, by the Territory law.

Rather than simply touching on a topic and, hence, being excluded from all time from dealing with it, the Territory submission is that the law of the Territory must have a more substantial link – more substantial contact – to be considered to be inconsistent. That is, respectfully, supported if one looks at the structure of the Self-Government Act, the structure of the scheme that the Commonwealth has quite deliberately constructed around the interaction between the Commonwealth and the Territory. We are speaking of a rule of statutory interpretation. We are not speaking of a constitutional principle between the Territory laws and the Commonwealth laws.

CRENNAN J: Your main point is, is it not, that there is no direct consistency, so reading down is not really a strategy about which you are speaking? In other words, you may accept in principle that section 28 will operate to allow the reading down of Territory legislation in order to preserve a concurrent operation but the main thrust of your argument is, is it not, that there is not the kind of inconsistency that would be capable of being read down. You are asserting, are you not, there is no direct inconsistency?

MR GARRISSON: Yes, your Honour, and as I said, that will be addressed in more detail by Ms Eastman as she proceeds through an analysis of the Commonwealth and Territory laws.

KEANE J: But you accept, do you, that direct inconsistency is that which is being described as altering, impairing or detracting from the operation of the Commonwealth law if the Territory law is valid?

MR GARRISSON: Of course, your Honour, alter, impair or detract has many faces and it has been used in a number of authorities to describe, in effect, a range – a range which can start with direct textual collision and can conclude with the - perhaps just short of covering the field but at that end of the spectrum. The Territory submission will be that, aside from textual collision, whatever view on that range one takes, our view is that the Marriage Act is properly interpreted so that the ACT law can, in fact, operate concurrently with it based on its terms.

KEANE J: You say, do you, that the ACT law confers a right to marry on persons who are denied that right by the Marriage Act?

MR GARRISSON: Yes, your Honour.

KEANE J: So, how does that not alter the law established under the Marriage Act?

MR GARRISSON: Because it does not touch, with respect, we say, the Marriage Act as it currently stands because that covers a particular form of relationship. We say that is a deliberate measure that is taken. We say that, if one looks at the text of the Marriage Act that there are a range of the qualifications and the exclusions from that Act in which gender simply do not figure.

We say that the exclusion of the registration of overseas same-sex marriages is too ephemeral to the core of the provisions of the Marriage Act to itself give a boost to establish, well, then that must be the purpose of the Marriage Act. One cannot create one’s own purpose by amendment to the text that has been there for some considerable time.

FRENCH CJ: If it is a purpose of the Marriage Act that the status of
marriage shall attach throughout Australia only to the union of a man and a woman – I know that is contrary to your arguments, but if that be the purpose, then you are in direct collision with it, are you not?

MR GARRISSON: If the purpose is that specific, your Honour, yes, there would be a collision. We, of course, say - - -

HAYNE J: You accept that the Commonwealth has power under 51(xxi) to enact a law with respect to same-sex marriage?

MR GARRISSON: We do, your Honour, as we pleaded in our defence.

HAYNE J: Thus, you say, presumably, that the Parliament would have power to enact a law stating explicitly that there shall not be same-sex marriage?

MR GARRISSON: Quite, your Honour; indeed. We say, of course, the Commonwealth has not done that.

HAYNE J: I understand you say the Commonwealth has not done that, but it comes to whether, properly construed, the Marriage Act contains that negative implication that the section 5 marriage, what I have referred to in argument as Hyde v Hyde marriage, shall be the only form of marriage.

MR GARRISSON: Well, if a negative implication, your Honour, is to be used to give rise to a prohibition on a relationship that is not in the express terms of the legislation one would have to, in my respectful submission, have a – it is easier to imply a liberty from a negative than a prohibition, and for there to be a prohibition arising from a negative implication I would respectfully submit that it would have to be of a more precise nature.

HAYNE J: Well, the point would be whether the Marriage Act of the Federal Parliament is an exhaustive statement of the whole of the law on the topic of this kind of personal relationship.

MR GARRISSON: Yes, your Honour.

HAYNE J: Now, if that is an area for debate – I see that it obviously has to be – how does section 28 march across the stage in any useful way? Is not section 28 beside the point? Are we not only in the area of whether, properly construed, the federal law amounts to an exhaustive statement of the law on the topic of personal unions intended to be enduring and to be entered according to law and dissolvable only in accordance with law?

MR GARRISSON: That is the critical undertaking, your Honour. We say that 28 assists in determining whether there is an inconsistency in the sense of determining whether our Act can operate concurrently or not. If one forms the view about the meaning of theMarriage Act and its terms then whether or not we can operate concurrently will depend upon that finding.

KIEFEL J: I am sorry, I still do not quite understand your submission about how section 28 can be utilised to construe the Marriage Act. I take it that you accept that the Commonwealth law, the Marriage Act, would prevail according to section 28. The effect ofsection 28 is that it will prevail to the extent of any inconsistency.

MR GARRISSON: Yes, your Honour, and our submission is not that 28 assists you to interpret the Marriage Act; it assists you to interpret whether there is an inconsistency between that Act and the Territory law, and that is whether it is capable of concurrent operation or not. That of course depends on the view one takes of the Marriage Act, which of course is the matter that is in contest.

KIEFEL J: But is your approach to view the Marriage Act through the spectacle, so to speak, of the ACT Act by saying, well, the ACT Act deals with this subject, and you look at the definition of the Marriage Act (Cth)
and you find that they are not the same, and you say by reason of that that the two definitions - that the Commonwealth Act does not cover the field. Is that the way in which you approach it?

MR GARRISSON: No, your Honour.

KIEFEL J: Are you saying that – what I am really saying is, is your argument that there is room left because the Commonwealth Act does not take up each form of marriage and does not expressly prohibit that which it - - -

MR GARRISSON: Yes, your Honour, and as I said, Ms Eastman will be dealing with that in more detail.

HAYNE J: One of the joys of going first, Mr Solicitor – she gets notice.

MR GARRISSON: Yes, indeed, your Honour. There was a matter that was raised in the reply of the Commonwealth, your Honours, which I just thought I would address briefly, and that was the proposition that the consequence of a finding that section 28(1) or, indeed, that the ACT Marriage Equality Act could operate at the same time as the Marriage Act would create a need for a plethora of amendments to Commonwealth laws to ensure that the Territory laws could not in effect override all those Commonwealth laws. My brief point there is that section 28 has been in the Self-Government Act for 24 years.

I do not think section 28 has relevantly been considered by this Court previously. It is an exceptional tool. The nature and the structure of the relationship between the Commonwealth and the Territory is such that one rarely has recourse to litigation in order to determine such matters, and the nature and structure of the Self-Government Act that I have outlined earlier reflects that. At that point, unless the Court has any further questions, I would ask Ms Eastman to present.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Ms Eastman.

MR GARRISSON: If the Court pleases.

MS EASTMAN: If your Honours please, can I deal with point 6 in our outline. Your Honours will see that we do not take issue with the Commonwealth with respect to the scope of the marriage power. Unless there is any particular matters that I can assist your Honours with, we support the Commonwealth submission. We can provide some additional authorities that also explore the scope of the marriage power but that is not a matter that I want to deal with in any further detail.

KIEFEL J: Is there anything that was said in argument this morning by the Commonwealth Solicitor-General about the background to the power being inserted in the Constitution and the purposes for it about which you would take issue?

MS EASTMAN: No, certainly not on the history prior to 1900 and certainly not in terms of what occurred between 1900 and 1961. The history is of some assistance but we say it does not fully answer the question. We certainly agree with the Commonwealth that the constitutional meaning of marriage is not limited to the Hyde v Hyde concept and that since we agree - - -

HAYNE J: - - - and therefore extends to personal unions from which flow legal consequences. I suspect there has to be an element injected of enduring, has there not?

MS EASTMAN: There does, your Honour.

HAYNE J: Dissoluble only by processes according to law.

MS EASTMAN: Yes. So could I then turn to the other matters that I want to deal with, that - - -

HAYNE J: Forgive me for persisting a moment.

MS EASTMAN: This is the benefit of being second, perhaps.

HAYNE J: There is no benefit to being second, Ms Eastman. The consequence is that you are denied, are you not? The Territory is denied the argument that says there are two kinds of personal relationship, one about which the Commonwealth can legislate, another about which the Territory has.

MS EASTMAN: They are the very matters that I want to turn to now, your Honour, in terms of my learned friend, the Solicitor-General for the Commonwealth outlined, I think, the core questions in his opening this morning. We would say that what lies at the heart of this controversy are two questions. The first is, has the Commonwealth demonstrated that the Marriage Act is a complete and exhaustive statement of the law covering who may marry, how a person may marry and valid marriages for Australia by reference to the terms, the nature or the subject of the Marriage Act and the Commonwealth says at the present time it is confined only to marriages between persons of the opposite sex.

The second question, and perhaps this reflects the matters that your Honour Justice Hayne has just mentioned, but we would say the second question is this, whether on a proper construction of the Marriage Act, is there a negative implication that arises that the ACT is precluded from legislating with respect to marriage that is not defined as a marriage for the purpose of Marriage Act and perhaps if I use this metaphor, has the Commonwealth cleared the field?

KIEFEL J: But you say the answer to the first question in the Commonwealth’s favour does not answer the second.

MS EASTMAN: That is right. So we say, no, the Commonwealth has not demonstrated that the Marriage Act is a complete an exhaustive statement.

KIEFEL J: But if it has, does that answer the second question?

MS EASTMAN: But if it has, then the second question is whether or not it on its terms covers the field, or we would say the other metaphor is clearing the field. This becomes relevant to looking, in particular, to the effect of the amendments in 2004 which sought to define marriage for the first time in the Marriage Act and whether, at that point, the constriction to marriage only between a man and a woman, in effect, cleared the field, so there was nothing left for either the Territory or the States to do outside that core definition.

KIEFEL J: The answer to your second question on your argument relies, essentially, upon matters of definition.

MS EASTMAN: Yes. In fact, we say that these questions really require careful consideration and attention to the text of the Marriage Act to discern the objective legislative intention.

FRENCH CJ: What is the relationship between those two questions and the question whether it is a purpose of the Marriage Act (Cth) to attach the status of marriage only to unions between men and women?

MS EASTMAN: There are two issues. One from a constitutional purpose that is really discerning what does marriage means for constitutional purposes? Then, secondly, turning to the Marriage Act and how has the Commonwealth sought to legislate within the scope of its power? There is a reference that might assist your Honours on this question because it can lead to one of circularity. It is an observation made by his Honour Justice Brennan in the matter of Fisher v Fisher [1986] HCA 61; 161 CLR 438, if I could ask your Honours to turn to page 455.

KIEFEL J: I am sorry, what was that page, Ms Eastman?

MS EASTMAN: Page 455. The final substantive paragraph on the page starts:

Marriage is a social and legal institution. For many, marriage is also, and primarily, a sacrament or an institution of religious significance, but it is in the character of a legal institution that marriage is a subject of legislative power conferred on the Parliament by s. 51(xxi) of the Constitution.

Could I ask your Honours just then to drop down further in the paragraph, where his Honour talks about:

an exercise in hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power.

In our respectful submission, the submissions made on behalf of the Commonwealth this morning, in effect, do that. There is a circularity in the way in which the Commonwealth puts its case, not seeking to identify with specificity the scope of the constitutional meaning of marriage but, rather, say that by defining marriage in the Marriage Act in a particular way that, in effect, answers the constitutional question.

So the circularity is something which we say should be avoided by clear definition of what this scope of marriage means for constitutional purposes and then turn to the text of the Marriage Act to identify what was the purpose or what is the purpose of the Marriage Act.

HAYNE J: Do you offer some working definition of the ambit of the constitutional head?

MS EASTMAN: As I said earlier, we agree with the Commonwealth that it is not limited to the Hyde v Hyde meaning of marriage. It might be broader but I do not, for ACT purposes, seek to say what the outer limits are. But we certainly say, as we have said in our written submissions, that we do not see that there is any intrinsic limitation.

Could I then turn, your Honours, briefly, to the Marriage Act (Cth)? My learned friend, the Solicitor-General for the Commonwealth, has taken you to the Act as it was first enacted. I want to briefly take you to a few provisions of the Act as it presently stands for the purpose of discerning the relevant power. In our submission, the Commonwealth’s contentions rely very heavily on extrinsic material and your Honours have heard a detailed account in the written submissions and, to some extent, this morning about the historical concept of marriage and heavy emphasis was placed on the objectives of having uniform divorce laws.

There is no dispute between the parties that marriage is an important social institution. There is no dispute between us that that social institution has changed over time and, no doubt, will continue to change. The liberty to marry or not to marry, as the case may be, has never altered over time and individuals remain free to choose their spouse subject to any express prohibition found in the law. So, the negative requirements for the purpose of the Marriage Act (Cth) for the most part are directed to age and issues of prohibitive relationships, affinity or consanguinity.

If one turns to the Marriage Act in its present form and the Act appears in the Commonwealth’s volume 1 of 2 current legislation, commencing at page 3, there is no objects provision for the Act as a whole, although I will come to a specific objects provision in relation to foreign marriages. The definition of “marriage” which was inserted in 2004, your Honours have been taken to by reference to the 2004 amendments, but it appears on page 12 of the volume or in section 5. “Marriage” is defined to mean:

the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

There is nothing in that definition that speaks to the age of the person who may marry and there is nothing in the definition of marriage which speaks to prohibited relationships between men and women. The Act, though, deals with questions of capacity and the question of capacity to marry - - -

HAYNE J: By saying that marriage means (a) do you not necessarily say that marriage does not mean not (a)?

MS EASTMAN: Well, we say that it was open to the Commonwealth to identify what was not marriage, and it has done so with respect to the age of persons who may marry, but also importantly to the types of relationships which would be considered void or prohibited relationships. So this definition of marriage has to be read in the context of the whole of the Act and, importantly, looking at the types of relationships that will never be permitted to constitute a marriage. So if your Honours look first to Part II of the Act starting with section 10 - it is page 19 of the volume - Part II is concerned with the question of capacity and marriageable age for the purpose of this Act is attained when a person reaches the age of 18.

That provision was amended in 1991. Before that women, or girls, were able to marry at age 16 and boys at 18. Now there is a fixed upper limit of age of 18, subject to authorisation provisions which your Honours will find in section 12 and following. So there is a clear prohibition on persons under the age of 18 being able to marry for the purpose of Commonwealth law unless the authorisations are otherwise obtained.

BELL J: Can I inquire before you go through the remainder of the prohibitions why in the context of provision under the Act defining marriage to be the union of a man and a woman would one be looking for a prohibition against a marriage between a man and a man or a woman and a woman? One can readily understand the prohibitions that can operate in relation to a person of the male gender and a person of the female gender who wish to marry, but when one has regard to the definition it hardly seems necessary to have a prohibition on same-sex marriage.

MS EASTMAN: Well, it may be that the effect of the amendment in 2004 to make that plain does, as I understand the Commonwealth contentions, confine what the Marriage Act deals with as exclusively marriage between a man and a woman. Our proposition, your Honour, is that it does not take the next step in making clear that while the Commonwealth Acts over that subject matter, and that is the Commonwealth’s field, it then for all time clears the field to put outside the scope of marriage what might be done by the States or Territories with respect to persons who do not otherwise qualify.

FRENCH CJ: You are talking about a statute, not for all time.

MS EASTMAN: Not for all time, but for the present time, yes, your Honour.

BELL J: Does it do that in section 40(1) providing with respect to Division 2 dealing with the solemnisation of marriage that the Division:

applies to and in relation to all marriages solemnised, or intended to be solemnised, in Australia.

MS EASTMAN: Yes, your Honour, and given that the definition of “marriage” now in the Act must be read for the purpose of section 40, yes. So it confines for the purpose of the Commonwealth Act a very discrete and we say small field and we go through this exercise of looking at the proper construction and interpretation of the Marriage Act to discern whether or not there is this intention to clear the field or whether this is an exhaustive statement.

BELL J: Is one to read into section 40(1) “in relation to all heterosexual marriages solemnised”?

MS EASTMAN: Yes, it can only mean that for the purpose of the Marriage Act now. So the first area of prohibition is age. The second area of prohibition arises with respect to void marriages which your Honours will find in Part III of the Act. There is a temporal aspect to the way in which the Act deals with void marriages. Division 1 deals with marriages between June 1977 and 1986. Relevantly, could I ask your Honours to turn to section 23B which appears on page 30 of the Commonwealth volume?

Your Honours will see that in subsection (1) the Act is quite specific as to what will constitute a void marriage. Your Honours will see at the end of that section the expression “and not otherwise”. The matters identified in subsection (1) are in part but not in whole reflective of what has been described as the Hyde v Hyde definition or, in more recent times, the definition in section 5.

So subparagraph (a) is directed to either of the parties, at the time of the marriage, being “lawfully married to some other person”, that “the parties are within a prohibited relationship”, and that expression is then picked up in section 23B(2), “by reason of section 48 the marriage is not a valid marriage”, and section 48 deals with certain formalities in terms of the way in which a marriage is to be celebrated.

HAYNE J: But what is the proposition, the alternative postulate you are putting, that the Act could have said what? You cannot say a marriage between persons of the same sex is void because it has defined marriage as being between persons of opposite sex. So what is missing out of 23B that you say one would expect to find?

MS EASTMAN: We would say for certainty one would expect to see that in the category of relationships which would give rise to a void marriage, that a marriage between a man and a man or a man and a woman would be expressly prohibited for the - - -

HAYNE J: But how, given the definition of “marriage” in the Act? The drafting conundrum and twists and turns you are getting yourself into perhaps reveal the difficulty, do they not?

MS EASTMAN: Perhaps if I can answer it this way. It becomes important, your Honour, in our argument because the absence of the prohibition points to the Commonwealth not clearing the field. So it is one thing for the Commonwealth to define for the purpose of this Act what marriage is to mean and limited to the marriage between a man and a woman. It is another thing for the Commonwealth simply to say that that definition standing alone has cleared the field that would prevent, in this case, the ACT enacting the Marriage Equality Act.

Your Honours will also see that the – if I can come back to 23B – that issues that are not addressed in the Hyde v Hyde definition and issues that are not addressed in Section 5, such as consent, duress or ford, are matters that are identified and equally then, finally, marriages not of marriageable age.

KEANE J: Ms Eastman, why do you characterise it as a – or why do you frame it as the search for a prohibition? Why is not the relevant search for a qualification? Why is not the relevant search for a conferral of capacity to enter into a union of marriage? We are looking at, your Honour, so that we can discern from the text of the Marriage Act that its purpose was to limit for present times marriages only to a man and a woman, such that the Commonwealth not only achieves that for its own Act, but takes one step further in preventing anyone else by way of the States or the Territories making a law that would recognise a marriage – if I can use that expression between people of the same sex. That is the purpose of - - -

KEANE J: Why is not the Marriage Act on a fair reading quite clear that the only people who are qualified or have capacity to enter into a marriage within the law of Australia people of the opposite gender?

MS EASTMAN: I suppose that requires an answer to an anterior question and that is, what does marriage mean? So, if one looks at, for example, at the definition in section 5 or reverts earlier to Hyde v Hyde, really those definitions do no more than describe the effect of marriage but do not deal with the essential elements of marriage.

KEANE J: Well, do they not establish that it is a status between the parties different from the status of single people, the status being attended by mutual rights and obligations of support and advancement?

MS EASTMAN: Yes.

KEANE J: So, the Marriage Act provides for the qualifications whereby people may enter into a union which creates between them the rights of mutual support and advancement.

MS EASTMAN: Yes.

KEANE J: And the Commonwealth Act provides for the qualifications necessary to enter into a union which creates that status.

MS EASTMAN: Yes, but it is the additional matter, your Honour, as to what the meaning of marriage is because there may be a range of unions entered into that meet your Honour’s description that would not meet the definition of marriage. The question is whether or not, in effect, what the Commonwealth is seeking to do is to say that the Commonwealth has exclusivity over the use of the expression “marriage” because of something intrinsic in the nature of marriage. So that, for example, the ACT is excluded from using the expression “marriage” to describe a same-sex marriage and the use of the word “marriage” is what caused the Commonwealth concern. If it was called something other than “marriage” it would appear that the Commonwealth would say that that may not, necessarily, detract from or alter the Commonwealth Act. So it is coming back to that expression.

KEANE J: What are the differences in terms of the mutual rights and obligations of support and advancement created under the Commonwealth Act? What is the difference between those rights and obligations and the rights and obligations that are created under the ACT Act?

MS EASTMAN: Probably no significant difference in terms of obligations for the purpose of the law. Neither law, either at the Commonwealth level or the ACT level, then intrudes into the relationship between the two individuals. These Acts, both the Commonwealth and the ACT Act, are essentially looking at questions of validity, so who may marry, how a person may marry and whether or not certain marriages will not be recognised as marriages either for the purpose of the Commonwealth Act or the ACT Act and that neither of them go any further than that - - -

KEANE J: So it is just about qualifications to have a ceremony?

MS EASTMAN: Well, it is essentially about capacity to enter into what is described for the Commonwealth purpose as marriage and what is described in the ACT Act as a marriage for the purpose of the ACT law.

HAYNE J: But these labelling arguments fail entirely, do they not, to come to grips with the fact that both Acts are concerned with questions of substance? They are not concerned only with questions of label.

MS EASTMAN: We agree entirely, your Honour, that the matter should not be labelled - - -

HAYNE J: And thus, the notion that the Commonwealth Act is dealing only with the use of the label, that the ACT Act is to be assessed on a basis of whether or not it has used this word, are beside the point, are they not?

MS EASTMAN: It is looking to - - -

HAYNE J: The whole purpose of the ACT Act is marriage equality and that is a question of substance, is it not?

MS EASTMAN: It is a question of substance but it is also a question over what the respective laws are dealing with by way of substance. The Commonwealth is only dealing with marriage as between a man and a woman and no more. The ACT Act is only dealing with marriage between persons of the same sex and no more.

KIEFEL J: But the purpose of the ACT Act is to give the same status to persons who are not described in the Marriage Act.

MS EASTMAN: We would say, your Honour, on the proper construction of the ACT Act is that what it offers a same-sex couple is to do something that they cannot do for the purpose of Commonwealth law - - -

KIEFEL J: Which is acquire the status of marriage?

MS EASTMAN: - - - for the purpose of the ACT, but there is nothing in proper construction of the ACT Act where the ACT is seeking to trespass in any way on the way in which the Commonwealth Act operates at all. So that I hope to take your Honours, if that is convenient, to the ACT Act at this point. It is also in the same bundle, starting at page 215. Your Honours have been taken to the long title as it appears on 223. Can I start though with Part 2, which appears at page 226, and section 6 makes it plain that:

in relation to all marriages between 2 adults of the same sex –

and then these words are important –

that are not marriages within the meaning of the Marriage Act 1961 (Cwlth) –

so that this law makes plain that it seeks not to trespass in any way on the Commonwealth Act. It starts with the premise that marriage for the purpose of the ACT Act is defined differently to the way in which the Commonwealth defines marriage for the purpose of the Commonwealth Act. The definition of “marriage” your Honours will find in the dictionary to the Act, which appears at page 280:

marriage, under this Act, means –

(a) the union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life; but –

and this is the qualification:

(b) does not include a marriage within the meaning of the Marriage Act 1961 (Cwlth).

So that the way in which the ACT Act is crafted is to very clearly identify that it is not seeking to trespass into or adopt or use the way in which the Commonwealth Act defines marriage. In that respect - - -

BELL J: A couple is legally married for the purposes of the law of the ACT if they are married under this Act?

MS EASTMAN: Yes.

BELL J: So, for certain purposes, the couple is legally married. For example, just to take one illustration, if one looks to the Evidence Act (Cth) and the question of the compellability of a spouse in criminal proceedings, the Act makes provision, including for same-sex couples, to have certain protections in that respect but it draws a distinction between people in a de facto relationship, including in a same-sex relationship, and people who are legally married under the dictionary. What is the position of the ACT couple who are married under the Marriage Equality Act?

MS EASTMAN: They are not – for Commonwealth laws, they are not recognised as married.

BELL J: So, they are not legally married for Commonwealth law.

MS EASTMAN: They are legally married to the extent that expression “legally married” it also appears in the dictionary for the purpose of ACT law. There is nothing in the ACT Act where the ACT is then seeking to extend the effect of being legally married for ACT law purposes beyond the scope of the ACT. We say, on proper construction of the ACT Act, that is plain.

BELL J: It gives a somewhat limited quality to equality.

MS EASTMAN: It does, but for ACT purposes, the equality is there for a group of persons who are otherwise unable to exercise the liberty to marry for the purpose of Commonwealth law. So the ACT is not seeking to be as adventurous as to suggest that this would be representative of marriage across the board.

Can I just briefly complete what I need to say about the ACT Act and then I want to return to the Commonwealth Act in terms of discerning its purpose from the text as opposed to relying on what might have been motives and subjective intentions by those introducing various amendments at different times to the Commonwealth legislation.

As to eligibility, your Honours will see in section 7 of the ACT Act - this appears at page 226 – contrary to what was put by the Commonwealth earlier this morning that the eligibility for marriage under this Act does not mirror the eligibility for marriage for the purpose of Commonwealth law. There are some similarities, so each person must be an adult, but beyond that each person must not be legally married - to the extent that expression is defined in the dictionary – or in a civil union and, importantly, the eligibility criterion 7(1)(c) is that:

each person cannot marry the person’s proposed spouse under the [Commonwealth Act] because it is not a marriage within the meaning of that Act –

Then your Honours will see over the page that the prohibited relationships by reference to consanguinity or affinity are then set out in some detail. So there is no direct textual collision or, we say, any collision between the eligibility criteria for the purpose of the ACT Act and who is eligible to marry for the purpose of the Commonwealth Act.

Your Honours will then see over the page that Division 2.3 deals with the solemnisation of a marriage for the purpose of the ACT Act. There is an element of formality in terms of the way in which the ceremony is to be conducted with respect to it being conducted by an authorised celebrant. There is a requirement for notice to marry under the Act. There is, your Honours will see, a requirement for evidence as to identity and age that appears in section 10 of the Act. And then there are the safeguards built in with respect to section 11, and that is that an authorised celebrant must not marry people if there are reasonable grounds with respect to the celebrant being satisfied that the persons who are seeking to marry are not otherwise eligible to marry.

Your Honours’ attention was then drawn to section 13 of the Act to deal with the form of ceremony and the words that are to be used in the course of the ceremony. Your Honours will see in subsection (2) that the references there are to “wedded [spouse, husband or wife]”. Now, read in context that is not suggesting man and woman, it is suggesting husband and husband and wife and wife or spouse and spouse.

So nothing can be taken simply by the use of the expressions husband or wife to suggest that there is some impairment to the Commonwealth scheme or that there is anything done by way of the way in which a marriage is to be conducted that trespasses on the way in which a marriage may be conducted or the requirements on a celebrant for the purpose of the Commonwealth Act. Then your Honours will see over the page a celebrant has the obligation to explain the nature of the relationship of marriage and then certificates are issued with respect to the persons so married. The Act also deals with void marriages. Section 21, which your Honours will see on page 238, identifies for the purpose of this Act a marriage that will be void. So a void marriage is, in subparagraph (a), if:

either party did not meet the eligibility criteria under section 7 –

issues around validity arising from form, and then questions going to duress, mistake or mental incapacity to understand the nature and effect of marriage. So this Act also makes provision in terms of what will be a void marriage. Your Honours were taken to section 33 by our learned friend the Solicitor-General for the Commonwealth, with respect to ending a marriage and, in our submission, section 33 in effect should be read with section 21. For the purpose of this Act but not for Commonwealth law purposes:

A marriage under this Act ends if either of the parties to the marriage later marries someone else under-

(a) a Commonwealth law . . . or

(b) a law of another jurisdiction that substantially corresponds to this Act.

The balance of the Act deals with authorised celebrants and the recognition of marriages in other jurisdictions and your Honours will find that in section 40. Our submission is that on the proper construction, the ACT Act only operates in the field of marriage with respect to two adults of the same sex and goes no further. The Commonwealth’s contention is that this Act is a species of marriage and, because it operates as a species of marriage, it is therefore inconsistent with the Commonwealth Act.

BELL J: Why is it not a species of marriage?

MS EASTMAN: Well, if one can never be married as a man or a man or a woman and a woman for the purpose of Commonwealth law, it is difficult to apprehend that a person can be a species of something that they cannot be in the first instance.

CRENNAN J: But in every respect it is similar except for the eligibility requirements.

MS EASTMAN: It is.

CRENNAN J: That is the only substantive difference.

MS EASTMAN: It is the only – there are other differences but I agree, your Honour, it is the only substantive difference. But what we say is that when one looks closely at the operation of the Commonwealth law and the ACT law, they are really dealing with different fields. The common aspect is the use of the expression “marriage”, but the fields on which they both - - -

CRENNAN J: Are they not dealing with marriage with different eligibility requirements?

MS EASTMAN: They do have – the eligibility requirements that are different are essentially the sex or the gender of the person who may marry and who may marry who, but other than that they operate in entirely separate fields. The ACT allows those who cannot achieve marriage for the Commonwealth Act to achieve that for the purpose of ACT law.

It is our submission that the way in which the Commonwealth, as we had understood, put its contention was that section 5(1) of the Commonwealth Act was an affirmative legislative choice that had the effect of prohibiting same-sex unions regardless. Secondly, they say that a negative implication can be drawn from section 88EA with respect to the recognition of overseas marriages. I have said, I think, what I need to say about 5(1) but I want to take your Honours, briefly, to 88EA and whether or not 88EA in the Commonwealth law is sufficient to - - -

KIEFEL J: Just before you do, section 14 of the ACT Act contains the celebrant’s explanation of the nature of the relationship of marriage, which is the closest thing, I suppose, to a definition of “marriage” for the purposes of that Act. It says:

Under the law, this wedding recognises that you are voluntarily entering into a lawful and binding union, for life, to the exclusion of all others.

MS EASTMAN: Yes.

KIEFEL J: How does that differ from the Marriage Act (Cth) notion of marriage?

MS EASTMAN: Because the celebrant makes it clear that the celebrant is authorised for the purpose of ACT law and the celebrant is speaking to that law, not the Commonwealth law.

KIEFEL J: But speaking of the same thing?

MS EASTMAN: Well, to the extent that one is looking at a voluntary union that is binding between the parties for life and for the exclusion of others, yes. I just want to deal, your Honours, briefly, with section 88EA and just answer the Commonwealth contention that a negative implication could be drawn for the purpose of the Commonwealth’s argument. If your Honours turn to page 67, Part VA deals with the recognition of foreign marriages. This part does contain an express objects provisions and the object here is to give effect to the Hague Convention on the Celebration and Recognition of the Validity of Marriages. Then, the amendments which your Honours have been taken to earlier today with respect to the 2004 amendments, 88B(4) contains that express reference:

To avoid doubt, in this Part (including section 88E) marriage has the meaning given by subsection 5(1).

The part then deals with marriages – I might, for simplicity, call foreign marriages – 88D provides that:

a marriage to which this Part applies shall be recognised in Australia as valid –

but a range of prohibitions are then set out in express terms in 88D(2). Your Honours will see that those matters reflect, for the most part, what would constitute a void marriage for the purpose of section 23B.

The other additional matter as a result of the 2004 amendments is section 88EA. That puts in express terms that a union between a man and a man or a woman and a woman must not be recognised as a marriage in Australia. That provision would apply to Australian citizens who leave the country and travel to a jurisdiction such as the Netherlands or Canada and Australian citizens may marry each other in accordance with the local Canadian or Dutch law and may effect for local law purposes in Canada or the Netherlands a valid same-sex marriage.

The Hague Convention to which this part gives effect is silent on the question of same-sex marriage and there is no definition of marriage. That would leave open a marriage that was valid for the purpose of foreign law then being recognised in Australia. The effect of 88EA is to create a clear prohibition with respect to what will be recognised for the purpose of Australian law but this section does not go further to touch on the question of validity of the marriage. The Commonwealth has not gone further to say, for example, that Australians cannot travel overseas and avail themselves of a same-sex marriage in a foreign jurisdiction. It simply says that foreign marriages will not be recognised in Australia.

In our submission, 88E does not assist the Commonwealth with any negative implications that the whole of the Marriage Act can then be read as an express prohibition on a marriage between a man and a woman for Australian law purposes. One does not discern from 88EA that marriages that might be recognised as same-sex marriages for ACT law purposes are then prohibited. The Commonwealth has taken the step of making express prohibition for the purpose of foreign law but did not take the step in 2004 in providing a similar style of prohibition into the domestic law.

The effect, we say, is that when one looks at the whole of the Marriage Act, it is difficult to discern that the purpose of this Act is to prohibit the States or the Territory making a law with respect to same-sex marriage. To the extent that the power is not exclusive to the Commonwealth, and to the extent that one must look to the Marriage Act to discern whether the purpose of this Act is to clear the field in effect to prevent other jurisdictions making laws to give effect to same-sex marriage, we would say that there is nothing in the text of the federal Marriage Act that discerns that intention in a clear way.

It would have been open to the Commonwealth to expressly provide by way of prohibition or describing as a void marriage, a marriage between a man and a man or a woman and a woman in the same way that the UK had done. It has not done that. It would have been open to the Commonwealth to expressly prohibit Australians availing themselves of overseas laws that would allow Australian citizens to travel overseas to effect a same-sex marriage.

It would have been a relatively easy matter, we say, with no injury to the text of the Marriage Act, to indicate that the expression “marriage” was for the exclusive use of the Commonwealth. We say that the subjective intention of the Act by adopting the Hyde v Hydedefinition in 2004 did nothing new or different. It simply declared what everyone assumed was the operation of the Commonwealth Act being restricted to a union between a man and a woman.

Section 5, to the extent that it reflects the Hyde v Hyde definition in 2004, did not really reflect the reality of the scheme that operates under the Commonwealth law. No-one is suggesting in 2004 that marriage is for life. Clearly the provisions that your Honours have been taken to in terms of the Family Law Act allow marriages to be dissolved on the basis of an irretrievable breakdown. The Act does not, for example, prohibit marriages of convenience where clearly the parties entering into the marriage have no intention of it lasting for life. So we say that section 5(1) does nothing to assist the Commonwealth to suggest that the Commonwealth Act proscribes for all purposes same-sex marriage being recognised by the States or the Territories. Likewise, we say no negative implication can be drawn from the effect of 88EA.

Your Honour, where this leaves us in terms of the operation of the ACT Act is that we say on their proper construction the Commonwealth Act and the ACT Act are directed to different fields. All they share in common is the expression “marriage”. The ACT Act does not impair or detract or trespass in any way from the operation of the Commonwealth law. It does not seek to deprive a person who has rights under the Commonwealth law from availing themselves of those rights. There is nothing in the text of the ACT Act, read with the Commonwealth Act that requires a person to be obeying two laws at the same time and being unable to do so.

If one looks to the test discussed by Justice Gummow in Momcilovic and your Honours have been taken to the authority and the relevant passage appears at paragraph 261 of his Honour’s judgment. The question is, is there sufficient to draw a negative implication that the concept of marriage for the purpose of the Commonwealth and for the purpose of the States and Territories is that marriage can only be the marriage between a man and a woman and not otherwise. In our submission, we say that there is insufficient in the text of theMarriage Act or the purpose of the Marriage Act discerned from that text to draw the negative implication.

HAYNE J: Can I just take you back to this question of 88EA and the place it may play in the Act? It provides, does it not, that the same-sex union contracted overseas will not be recognised as a marriage in Australia?

MS EASTMAN: Yes.

HAYNE J: That is subject to the qualifications of 88E, in particular, relevantly 88E(4). The Marriage Act elsewhere says that neither a same-sex union nor a polygamist marriage may be contracted in Australia under the Act, does it not?

MS EASTMAN: That is correct.

HAYNE J: I may be mistaken, I do not know, I think that 88E(1) may have an effect that a potentially, as distinct from an actually polygamist marriage contracted overseas, would be recognised.

MS EASTMAN: Possibly, save for the operation of 88D(2)(a).

HAYNE J: Even with 88D, I am not sure whether that is so. It may not matter, but your proposition has to be that despite the two propositions, neither a same-sex union nor a polygamist marriage may be contracted in Australia under the Marriage Act, and the further proposition a same-sex union contracted overseas will not be recognised as a marriage in Australia - - -

MS EASTMAN: Correct, yes.

HAYNE J: - - - does not evince the negative implication that this Act, that is to say, the Marriage Act is an exhaustive statement of the law on the topic of the relationship of marriage. That is the area of debate.

MS EASTMAN: Yes, your Honour. Can I finally deal just with the question of the – what is put as the fear of the revival of a whole range of private international law rules in relation to the operation of the ACT Act. We say, this is a straw man. In the same way that the concept of de facto relationships, or what used to be called common law marriages, might be recognised between one State and another, then those issues are dealt with by the way in which the relevant laws of the States or Territories deal with those matters. We do not see that anything new is going to arise in terms of revival of private international law principles touching on the recognition of an ACT marriage. If there are any other matters, those are our submissions.

FRENCH CJ: Thank you, Ms Eastman. Yes, Mr Kirk.

MR KIRK: Your Honours should have our two page outline of the oral submissions. May I start with what we respectfully submit is the logical starting point, namely, the constitutional power, and in particular can I seek to address briefly why in our respectful submission the issue cannot be avoided by concession of the ACT? We obviously accept that in ordinary litigation the issues brought before this Court, or any court, are the issues identified by the parties, but there are limits on this. In courts, for example, and particularly this one, constructions of legislation - - -

FRENCH CJ: I do not think you need to persuade us of that. Why do you not move on to the substance?

MR KIRK: Can I just provide one authority to that effect which is Breen v Snedden which we have referred to in our written outline which indicates that, for example, were two people who had sought to be married under the ACT law were to come back to this Court next week and seek to re-agitate these issues, following the authority of Breen v Snedden, the Court would say, well, look the issue has been dealt with, just as for constitutional facts, one cannot seek to re-agitate issues all the time.

Can I provide by way of assistance to the Court one further reference? In Coleman v Power, and I will not ask your Honours to go to it, but can I just give some references[2004] HCA 39; , (2004) 220 CLR 1, there was some discussion of this issue at paragraph 79 - - -

FRENCH CJ: Yes, Mr Kirk, your time is limited. You do not need to address what really is not in dispute.

MR KIRK: If it please the Court. Can I then turn to the scope of the power and, in our respectful submission, it is not open to the Commonwealth to remain on the fence. The Commonwealth’s case is that the Marriage Act provides implicitly that there can be no entry into that status other than under the Commonwealth Act. Obviously - - -

HAYNE J: Whether or not the Commonwealth wants to remain on the fence, what is your proposition about power?

MR KIRK: Our proposition about the power is set out in paragraph 2(c) of our outline which is picking up on - - -

HAYNE J: You assert the Commonwealth has no power to enact a law for same-sex marriage, do you?

MR KIRK: No, no, to the contrary.

HAYNE J: I thought so.

MR KIRK: It should be held that the marriage power in section 51(xxi) extends at least as we say the attribution of legal status that marriage to personal unions of persons who wish to be recognised as having that joint legal status. Now, we might also add to that the notion of on an enduring basis.

Can I recognise that there are dangers self-evidently in seeking to be too definitive about any aspect of the scope of power because, in those broad issues, will be argued in 20 years time. What is necessary is to seek to identify what is relevant to the matters in issue before the Court.

FRENCH CJ: Well, you are putting this as a non-exhaustive definition, in any event, because you used the words “at least”.

MR KIRK: Correct. Yes, that is right. So we pick up some of the aspects of Hyde v Hyde but only some. We pick up, obviously, the notion of union, the notion of status and perhaps also the notion of enduring basis, but we exclude issues of man and woman, obviously enough, and we exclude also the issue of to the exclusion of all others and may I seek to explain briefly why and we have dealt with this in more depth in our written submissions?

The issue of the status of marriage is one which – at least in the Anglo-Saxon tradition – has religious origins in that it was dealt first with by religious traditions, it came then to be dealt with by ecclesiastical courts, it came then to be dealt with by general law, it came then to be dealt with progressively and increasingly by statute, starting with a statute under Henry VIII in 1540 and increasing regulation thereafter.

The content of the statutes and the content of what was recognised as marriage changed and evolved progressively over time, right through the 19th century, right through the 20th century. So as my learned friend, Mr Gleeson, indicated this morning, for example, there was a significant dispute in the 19th century about issues of affinity, whether people could marry their sisters or brothers-in-law following the death of their spouse. Now, England took the particular view which is that no, you could not. The colonies mainly took a different view and that difference was in place at Federation.

Marriage, in our respectful submission, is very much the sort of thing which is dynamic and was in motion and changing over the course of time such that it is precisely not the sort of thing which would be taken to crystallise and freeze as at 1900. Your Honour Justice Crennan referred this morning to patents or design marks over smells and colours, for example. That is an illustration of how things evolve.

There are other obvious examples – section 51(v) in relation to television and radio. The patents power, again, in relation to plant variety rights as dealt with in the Grain Breeder’s Case in 2000. There are other illustrations by analogy of how things which may be taken to change and evolve over time were likely intended to be, and should be taken to be, encapsulated as broad, potentially evolving, dynamic notions.

CRENNAN J: We were taken this morning to the earlier Marriage Act Case and the judgment of his Honour Justice Windeyer at page 578 – you do not need to go to it. We were taken to a passage in which his Honour said:

Marriage law is not a matter of precise demarcation; but it is a recognized topic of juristic classification.

MR KIRK: Yes.

CRENNAN J: That is your point, is it not?

MR KIRK: Precisely.

CRENNAN J: You agree with that?

MR KIRK: Precisely so, with respect. Can I add, against interest, recognising that there is no contradictor on this point, that there is one further adverse reference which my learned friend, Mr Gleeson, did not refer to in the judgment of Justice Gibbs in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at page 524, about halfway down the page, where his Honour referred to what might be called, loosely, a Hyde v Hyde-type view of marriage.

But that was said in a context, in our respectful submission, where the sort of issue that is before the Court today had not been argued, so it could not be said that that was some definitive statement in light of some argument being presented to the Court. It reflected an understanding at the time. In our respectful submission, marriage precisely because it is such an important social, cultural, to some religious, institution, is an institution on which people at particular points in time often express strong views as to what constitutes marriage, but those views change and evolve, reflecting the social mores of the time and, because it is a power of which we were speaking meant to endure, it should not be seen to crystallise to reflect a 19th century view of what constituted marriage.

KIEFEL J: Well, one thing it is, is a legal or juristic concept to which rights and obligations can be attached. Would you say that the ACT Government could attach rights and obligations to married persons consequent upon solemnisation of a marriage under the Act?

MR KIRK: Leading to the issue of inconsistency, that is - - -

KIEFEL J: Well, we will worry about where we are going later after you have given me the answer.

MR KIRK: Yes. First, can it attribute status to married persons – sorry, can it attribute legal consequences to married persons? Absolutely, yes, and does so all the time. Your Honour Justice Bell gave an example from the Evidence Act. I assume something similar may be found in the Evidence Act of the ACT. One of the very points, as my learned friend put it this morning, of defining marriage is to then create the defining category on which other aspects of law operate. So, can ACT law give consequences to that? Yes, it does so all the time.

KIEFEL J: I did not ask this of Ms Eastman but I see there is a number of consequential amendments in Schedule 2 to the ACT Act. They probably contain provisions doing just that.

MR KIRK: Yes.

KIEFEL J: Your essential point, is it not, is that whatever the Marriage Act creates the ACT Act creates a new status?

MR KIRK: Yes, precisely so. Can I turn to deal with that point and move on from the Constitution?

KIEFEL J: My question then is, are you referring to status? Are you really referring to the capacity of people to attain the status of marriage or are you truly speaking of a new status?

MR KIRK: The latter.

CRENNAN J: Is it not the same status with different eligibility requirements?

MR KIRK: I had thought we differed from the ACT in that we would answer that question, it is a different status. I am not so sure now with respect to my learned friend, Ms Eastman, whether she might also answer that question. Leave that aside, we say no, it is a different status. Can I seek to develop that point? To understand what the ACT Act can do and does, one needs to stand back, in our respectful submission, and understand, well, what would lay within its potential remit of power?

To understand that and recognising, of course, that marriage is a status one needs to understand four levels of law. First, the ACT could not, could never seek to modify the effect of federal law insofar as it deals with the rights or obligations of a married person, so to pick up the example from your Honour Justice Bell, no. What a married person is for the purposes of the Evidence Act is to be determined by reference to the Evidence Act construed in context, including the broader context of federal law. The ACT law could never change that.

That leads to the second level, namely, statutes of other States or Territories. Now, in our respectful submission, the same answer applies. The ACT could not seek to dictate to other States and Territories what constitutes for the purposes of their legislation married persons. My learned friend, Mr Gleeson, gives an example of the Succession Acts (NSW) referring to marriage but, equally, one could refer to the Evidence Act (NSW). Whether or not such references pick up the ACT concept or status is a matter of construction of the State or Territory law in question.

It has to be construed as a matter of State or Territory law. It is not likely that such would be construed as extending to the ACT notion when one understands the legal context against the background of which the Succession Acts and other such Acts are enacted, namely, that the Marriage Act regulates attainment of the status of marriage.

My learned friend, Mr Gleeson, asked whether New South Wales law would recognise an ACT marriage for New South Wales residents who came down here to get married. In our respectful submission, that is too abstract a question. One has to ask, for what purpose? If it for the purpose of the Succession Act, for example, one looks to the Succession Act to see how it would apply.

The third level of law is ACT statutory law and, plainly, in our respectful submission, the ACT can modify its own statutes as to what benefits and burdens it imposes on couples, however they are identified, and however they are labelled. Indeed, the Commonwealth does not dispute that proposition because the Commonwealth, most clearly at paragraph 27 of its written submissions, accepts that legal rights and duties can be equalised such as if the status of marriage was given to de facto couples. So the issue is not about according legal rights or duties, it is about bringing into that status of being married which leads to the fourth level and, perhaps, in one way the least important and, in another way, the most important and that is general law, by which I mean common law and equity.

There are a few, a handful perhaps, of general law doctrines which still apply distinctively to married persons, for example, a presumption of advancement or the equity in Yerkey v Jones, at least as this Court dealt with it in National Australia Bank v Garcia. There is no doubt that the ACT can modify those doctrines as a matter of ACT law. It can directly change how a presumption of advancement applies. It can change how the equity in Yerkey v Jones applies.

The question in a sense comes down to does the ACT by creating this new status of same-sex marriage under this Act purport to speak to that broader general law notion apart from directly modifying the actual doctrine itself if it does so and, in our respectful submission, it does not. The general law status of marriage has always, hitherto, been understood as a heterosexual union. It is always open for the general law to evolve, of course. So much was noted in Garcia and we have given a reference in our written submissions. It was the subject of argument in this Court in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 about whether the presumption of advancement applied to de facto relationships and the Court split on that issue.

What this ACT equality Act actually does is, in our respectful submission, to deal with and extend and seek to equalise substantive rights and duties of persons affected by it. There needs to be a mechanism for any such law to recognise who is in the category and who is out. So, for de facto relationship laws, there are certain criteria, the criteria which tend to be fairly uncertain. That has led the States and Territories or many of them, I think five altogether, to create civil partnership laws by which the rights that go along with being a de facto couple can be crystallised through a relatively formal process – it might be sending in a form, it might be doing something else – leading to a crystallisation of the status. So, from that point on, the status for the purpose of State or Territory law is understood. Again, in our written submissions, we have given references to those laws.

The Commonwealth does not say such laws are invalid. The Commonwealth accepts in paragraph 27 that such laws are invalid and we note in our written submissions that under the Family Law Act whether or not a civil partnership has been entered, namely this crystallisation process, is one of the relevant criteria for identifying what is a de facto relationship for when the Family Court deals with it under its referred power.

FRENCH CJ: Would this argument be as good for an ACT law creating what you would call a new status of ACT marriage between heterosexual couples?

MR KIRK: It becomes – there are two issues, in a sense, raised by your Honour’s question. One is, what does the law do as a matter of substance? If the law as a matter of substance is of a kind of a de facto partnership legislation but moves it along by the process of crystallisation involved in civil partnerships, then, as a matter of substance, it is not intruding on the general law status of marriage. It cannot do anything vis-à-vis the statutes of other polities. It would be valid. But then there is a second point perhaps wrapped up in your Honour’s question, with respect, which is the use of the word “marriage”.

The Commonwealth has not in its submissions, either in writing or orally, as we understand it, sought to assert that there is a negative implication that the use of the word “marriage” is forbidden for other legal purposes. In our respectful submission, the Court would not likely find such a negative implication. “Marriage” is an ordinary word of usage - - -

FRENCH CJ: Does that mean the answer to my question is yes?

MR KIRK: It would be – I think the answer would be that such a law would be valid. Such a law would be valid so long as it did not seek to then intrude on what is exhaustively regulated by the Commonwealth. I should note in a sense I am speaking alternatively here and that we respectfully agree with the ACT that the Marriage Act is limited in its reach and deals with heterosexual marriage institution, but I am now moving to the alternative and saying - - -

CRENNAN J: I think you should say marriage between a man and a woman, Mr Kirk.

MR KIRK: Yes, I am sorry, your Honour, I apologise.

CRENNAN J: Ms Eastman accepted that the Marriage Act would cover marriages of convenience; they would be valid.

MR KIRK: Yes. In the alternative, we respectfully submit that it deals with a – that whatever the federal Act does, the ACT Act deals with a new status, a new status for the purpose of ACT law. It does not seek to trench upon what the Commonwealth has regulated as to the status of marriage, whether under federal law, State and Territory law or general law. Furthermore, section 28, like section 109, leads to invalidity only to the extent of the inconsistency.

FRENCH CJ: Well, you say no question of inconsistency arises because this sits in its own silo and it is ships passing in the night.

MR KIRK: That is right. But insofar as there is an issue with status, insofar as the ACT Act was seen as not only regulating rights and duties under ACT law but also seeking to trench upon the status it may be invalid to that extent. That does not mean the whole Act is invalid. I note the time, your Honour. I have probably got about another five or 10 minutes.

FRENCH CJ: I think you have said just about everything you can.

MR KIRK: I have got about another five or 10 minutes but I am happy to come back tomorrow. May it please the Court.

FRENCH CJ: I am sorry, I thought – I did not realise you were looking to an adjournment. I thought you were just about finished on your substantive argument.

MR KIRK: I have about another five or 10 minutes, your Honour.

FRENCH CJ: Can you complete then, please?

MR KIRK: Certainly, thank you. There is an issue raised by the Commonwealth as to whether it leads to invalidity because of what it calls mimicking the essential or formal requirements of marriage. In our respectful submission, that is an irrelevant submission because if one accepts that de facto or other such partnerships can be given a new status the criteria which lead to recognition of that status do not matter.

CRENNAN J: Is it a new status or a deemed status?

MR KIRK: Either way it would be valid, so long as it is understood to be deeming it for the purpose of ACT law and I refer your Honours again to paragraph 27 where the Commonwealth accepts that law can be equalised “as if” relevant persons had “the status of marriage”. Therefore, whatever formality, whatever occasion, whatever words are said to lead to recognition of the status it makes no difference, in our respectful submission, if the ultimate status is valid.

As to the use of the word “marriage”, I have already touched upon that. If the Commonwealth did seek to support – and we do not understand it to do so – but if it did seek to support a negative implication relating to the use of the word “marriage” being an ordinary word, that would prevent, for example, a de facto relationship act being called a de facto marriage act. Yet, it is quite common to speak of de facto marriages. We have given references in our written submissions to where, even members of this Court, have used that term.

It would be surprising were the Commonwealth to seek to do so. To seek to prohibit use of an ordinary word might even raise constitutional questions of the kind considered in Davis v Commonwealth about words associated with the bicentenary, and we have given a reference to that in our written submissions (1988) 164 CLR 79.

To seek to summarise all that, if I may, first, the Commonwealth power is broad and encompasses same-sex marriage in the sense we have sought to articulate in paragraph 2c of our outline. Secondly, the Commonwealth has not exhausted its constitutional power in enacting the Marriage Act. Thirdly, what it has enacted is a limited form of marriage – the Hyde v Hyde form of marriage. Fourth, even if that has a negative implication as to other States and Territories recognising the status of marriage, the ACT Act does not, or does not only do so.

As to what the ACT Act does do, in our written submissions we have set that out to refer to at footnote 67 of paragraph 62 on page 17 of our written submissions. We respectfully point out that the actual legal significance of the relationship of the relevant character is spelt out, not in the Same-Sex Equality Act, but in other ACT legislation such as the Evidence Act, such as the Legislation Act, such as the Married Persons Property Act. It does that very much in line with other de facto partnership legislation. It is just that it is using the word “marriage”. It is seeking to give equality following a process of registration and that, in our respectful submission, is valid.

BELL J: The Commonwealth Act prohibits certain parties from marrying under section 23B. Can the ACT legislate to provide for a new form of status for persons within one of those prohibited categories creating an ACT marriage for persons within a prohibited relationship or the like?

MR KIRK: Yes.

BELL J: It could.

MR KIRK: Yes, and it may well do so, to some extent, under de facto partnership legislation, without getting bogged in criteria, but it may well do so because the criteria are different.

BELL J: So the significance of the prohibition in 23B is neither here nor there to your argument?

MR KIRK: No, I think that is right, your Honour. If the Court pleases.

FRENCH CJ: Thank you, Mr Kirk. Yes, Mr Solicitor. How long do you expect to be?

MR GLEESON: Ten to 15 minutes.

FRENCH CJ: Yes, Mr Solicitor.

MR GLEESON: Thank you, your Honours. Firstly, could we take up the question as framed by Justice Crennan, and I think some of the other Judges of the Court this afternoon, which is whether what the ACT Act purports to do is to simply vary the eligibility criteria which the federal Act has set for what is, in truth, the same substance. We would adopt that respectfully as a framework for the question. What the ACT Act has said is our interests, our perceptions of justice and non-discrimination are such that we disagree with your eligibility criteria and we therefore propose to modify them and give people a status of marriage. That, we submit, is sufficient of itself to demonstrate the inconsistency.

That is the first point. The second point was there was some emphasis from Ms Eastman that there needed to be an express prohibition upon same-sex parties entering a marriage in order for the Commonwealth to adequately express the negative implication. We would submit that express prohibition of that sort is neither the only way of conveying the intention nor necessarily a way that would be expected in the context of this scheme given that you have already been told what it is that are the eligibility criteria.

And, your Honours, in that respect we had included in our reply in paragraph 7 an extract from Professor Hart in The Concept of Law identifying that when one is looking at the rules governing marriages we are not in the territory of prohibitions, we are in the territory of the procedures, formalities and conditions indicating what people need to do to give effect to their wishes, and within that territory the federal law has uniformly and exhaustively said these are the conditions which need to be satisfied in order for you to be able to take up the legal consequences of this status.

Your Honours, the third matter was Justice Keane asked some questions of Ms Eastman concerning whether marriage, as an institution, conveys mutual obligations of support. I understand her to have accepted that proposition. One place where that is referred to is in Justice Brennan’s judgment in R v L [1991] HCA 48; 174 CLR 379, particularly at 391 to 392, that is, obligations of mutual support as well as what might be called obligations imposed by statutes and the general law by reference to the status of marriage.

Once that be so we would disagree with the ACT’s proposition that this “marriage” is just an expression where the ACT is permitted to allow for people to take up that expression who cannot take up that expression under the Commonwealth law. That is to devalue legally the significance of marriage as an institution as reflected in the Commonwealth laws and to that extent to subordinate the Commonwealth’s conception of the role of marriage to the ACT’s perception that this is simply an expression which ought to be extended to a larger group of people.

Your Honours, the final matter just concerned something Mr Kirk said near the end. I gathered he said to your Honour the Chief Justice in answer to the question that the ACT Heterosexual Marriage Act is valid because even though it trespasses on the very territory regulated by the Commonwealth Act the fact that you have called it something different, the ACT Heterosexual Marriage Act, and you say to people you are being married under “our Act and for the purpose of our law” means that you are in a different silo. I apprehend that to be his answer to your Honour’s question and if that is the answer we would submit it exposes the fallacy in his argument. If your Honours please, that is what we wish to say in reply.

FRENCH CJ: Thank you, Mr Solicitor. The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December. The Court adjourns until 10.15 tomorrow morning.

AT 4.25 PM THE MATTER WAS ADJOURNED