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Government's gay marriage challenge could create landmark test case

Scott Bevan reported this story on Friday, October 11, 2013 12:35:00

SCOTT BEVAN: The ACT is pressing on with its same sex marriage legislation, even though the issue is seemingly bound for the High Court.

The Federal Government has said it will challenge the territory's laws, with the Attorney-General George Brandis describing the ACT's move as a threat to nationally consistent marriage legislation.

What looms is a major test case - for not only same-sex marriage but the powers of states and territories.

Professor George Williams is one of Australia's leading experts on constitutional law. As well as writing extensively about the subject, he is a professor in the University of New South Wales' Law Faculty.

I spoke with George Williams a short time ago.

GEORGE WILLIAMS: Well, what we do know is actually both the states and territories and the Commonwealth have power over marriage, and that's because marriage is what's called concurrent power, it's a shared responsibility like tax and other areas.

What we don't know is whether there's actually a conflict between the Federal Marriage Act and any ACT law for same-sex marriage. That's a conflict that only the High Court can resolve and it's one that would involve difficult questions of judgement by those seven judges.

SCOTT BEVAN: Well, the ACT's Chief Minister says both can operate concurrently and that the ACT law has been drafted accordingly.

GEORGE WILLIAMS: It's clear that they can both operate concurrently in the sense that the ACT law is very carefully drafted so you can't possibly be married both under ACT law and federal law. The federal law is for heterosexual marriage, the ACT law would be for same sex marriage, so they operate in different ways in that way.

But there is still a possibility that the High Court might see the ACT law as being inconsistent because the federal law covers the field, and that's an approach to the constitutional law which gives great width to federal laws and can knock out a state or territory law even where they don't seem to conflict otherwise.

SCOTT BEVAN: Well, this is headed for the High Court. Why would the Federal Government challenge this in the court rather than refer it to Parliament? Why this option?

GEORGE WILLIAMS: Well, they essentially do have those two options, and it's really a political and strategic judgement as to whether they want to attack the ACT law in court or in Parliament. And I suspect that at this stage they've recognised that it may be difficult to get the numbers in Parliament given the configuration of the Senate being controlled by Labor and the Greens until 1 July next year.

So rather than wait for that to change, they certainly do have the court option open to them. Anyone's entitled to take a case in the court where they've got standing and you'd have to say that the result is uncertain. So it's not surprising that they'll have a go at this and indeed even if they lose this, they might down the track still have a view to perhaps proceeding in Parliament.

SCOTT BEVAN: Notwithstanding you're saying that the result is uncertain, I'm going to ask you to gaze into the crystal ball with your considerable knowledge: who is likely to win in court and why?

GEORGE WILLIAMS: (laughs) Well, I would say on this a couple of things. Firstly, you learn at your peril to try and guess what the High Court might say on these types of issues and this is a spectacularly difficult one.

It's in fact the sort of issue that is often set for constitutional law exams around the country because it's a classic case of hard to determine. We're dealing with an old constitution that doesn't deal directly with these types of issues, and ultimately it actually won't be about same sex marriage in the High Court anyway. It'll be decided on federalism grounds - that is the respective powers and responsibilities of the Commonwealth and the states and territories.

And look, it's a long answer to a short question. The short answer is I really don't know. It's an open question without a clear and obvious result.

SCOTT BEVAN: With those broader implications there that you just referred to, that it's about not just the same sex issue but broader questions of states and territories' powers, how momentous is this case likely to shape up to be?

GEORGE WILLIAMS: Well, if this was being fought overseas it would be a momentous human rights case - it would be about equality, non-discrimination marriage rights - but in fact none of those things is likely to play a role in the High Court here.

It will be very important to our system of government, but from the perspective of just how far can the states and territories go in enacting social policy of this kind. I mean the states controlled the field of marriage until 1961. We had no federal laws in the field until that time, and this is about whether they have the power to re-enter it.

But of course the implications can be much broader - not just in marriage but in many other areas - and that's why you'd expect all of the states and territories to be very interested. They may well intervene in the case to put their own view - because it's a test case not just on the marriage issue but more broadly about power within the federation.

SCOTT BEVAN: With states looking at same sex marriage laws as well, would a state hold a better chance in making this a reality than a territory, than the ACT for example?

GEORGE WILLIAMS: Well, on the political side, the states would not be subject to the same risk within Federal Parliament of it being overridden. That's a special power that applies to the territories, but on the High Court side there it's pretty much the same.

There are some small differences between the territory and state inconsistency provisions, but essentially you would say a well-drafted ACT law is no less likely to survive than a well-drafted state law. So in that sense it is a major test case also for the sorts of laws that might be enacted in other jurisdictions at the state level on same sex marriage.

SCOTT BEVAN: And George Williams, how much will it once again cast a light on the very document itself, the Constitution, and looking at its currency?

GEORGE WILLIAMS: Well, it does, and I think we'll probably throw up some significant issues about just how well it deals with these matter. And that's because, to be frank, it's a bit of a mess at the moment. Nobody's clear who has power over same sex marriage. This case will focus on ACT power, but there are bit questions that have not been resolved about whether even the Commonwealth has power over this subject.

It's got a power over marriage - that word is used - but if the High Court looked at the word marriage through the intentions of the framers of 1901, they may say the Commonwealth itself is restricted in only passing laws for heterosexual marriage.

So, it's an old document being interpreted by today's judges, but the age of the document itself is something that can bear very heavily on the resolution of these cases.

SCOTT BEVAN: That's professor George Williams, a constitutional law expert from the University of New South Wales.

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