Reg v L

The High Court of Australia heard a case removed from the Registry in Adelaide concerning the validity of a South Australian legislative provision. The parties involved were the Attorney-General for South Australia, represented by the Solicitor-General, and the respondent, represented by Mr. Wendler and other counsel. The Attorney-General for New South Wales and the Attorney-General for the Commonwealth intervened in the proceedings, both in the interests of South Australia.

The central legal issue before the Court was whether section 73(3) of the Criminal Law Consolidation Act 1935 (SA) was invalid due to inconsistency with section 114(2) of the Family Law Act 1975 or any other provision of the Family Law Act or the Marriage Act. Section 73(3) of the South Australian Act states that no person shall be presumed to have consented to sexual intercourse with their spouse solely by reason of being married.

The respondent argued that section 73(3) abolished the common law presumption that marriage created an obligation to consent to sexual intercourse. The Court was invited to consider this provision and its relationship with the Family Law Act. The respondent's submission was that the South Australian legislation recognised and then abolished this common law principle. The Court also noted section 73(5) of the Criminal Law Consolidation Act, which appeared to revive the common law.