The Commonwealth of Australia v The Australian Capital Territory

[2013] HCATrans 262

[2013] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C13 of 2013

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Plaintiff

and

THE AUSTRALIAN CAPITAL TERRITORY

Defendant

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 4 NOVEMBER 2013, AT 2.14 PM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR G.A. HILL and MR C.L. LENEHAN, for the Commonwealth.  (instructed by Australian Government Solicitor)

MR P.J.F. GARRISSON, SC, Solicitor‑General for the Australian Capital Territory:   If it please your Honour, I appear with MS K.L. EASTMAN, SC and MS H. YOUNAN, on behalf of the Territory.  (instructed by ACT Government Solicitor)

FRENCH CJ:   Yes.

MR GLEESON:   Your Honour will have seen that good progress has been made since the first directions hearing.  Firstly, the defence has been filed pursuant to the directions and it is apparent that there are no disputes concerning factual matters in these proceedings.  Secondly, in the event the Court formed the view the matter warranted a hearing in the first week of December, the parties are agreed upon a timetable, including questions to be reserved for such a hearing.  For our part, we are seeking those orders and the only matter that might stop that is your Honour’s consideration of the matter together with some points which are hinted at but not squarely advanced by the ACT.  I can address those points perhaps in reply, your Honour, if they are actually taken.

FRENCH CJ:   Yes, I might hear from the Solicitor‑General of the ACT first.  Thank you.  Yes.

MR GARRISSON:   Thank you, your Honour.  As my learned friend, the Solicitor‑General, has indicated, we have reached substantive agreement on a range of issues.  The only outstanding matter is the question as to whether or not your Honour considers whether this is an appropriate forum in which to hear the matter.  The issues I think have been addressed in our summary of submissions.

FRENCH CJ:   Well, are you submitting that it is not?

MR GARRISSON:   We are not submitting that it is not, your Honour, but we felt that it was appropriate to draw certain matters to your Honour’s attention.

FRENCH CJ:   Yes.

MR GARRISSON:   Namely, that there is, we say, your Honour, no constitutional issue that is to be considered.  The matter is purely a matter of statutory interpretation, namely, the interaction between the Marriage Act, the Family Law Act, the ACT’s law and section 28 of the Self‑Government Act.

FRENCH CJ:   Even accepting that proposition, the case for the Commonwealth depends upon, in part, an assertion that the Marriage Act exhaustively, as it were, defines the concept of marriage independently of what the power may cover for Australia, which would be a matter I would think of interest to other States.

MR GARRISSON:   It would be of interest, your Honour.  We, of course, say that the Territory is in a different position to the States.

FRENCH CJ:   If that is the premise on which the Commonwealth is operating, even though section 28 is not in terms the same as section 109, it has implications for any subsequent debates about the application of section 109 to a State law; that is, the proper construction of the Commonwealth laws in question.

MR GARRISSON:  I am not able to take that aspect of it any further, your Honour.  Our view was that the interpretation of section 28 was distinct and separate from 109.

FRENCH CJ:   Yes, I know; I am not debating that with you; I am referring to the interpretation of the provisions of the Marriage Act which are relied upon by the Commonwealth.

MR GARRISSON:   Yes.  Well, your Honour, our position was that the interpretation of the Marriage Act simpliciter, whilst it would be of interest, did not raise an issue under the Constitution.

FRENCH CJ:   It may have consequences of a constitutional character for State legislatures that might be contemplating enacting similar laws at some stage in the future.

MR GARRISSON:   It may well, your Honour.

FRENCH CJ:   Yes, all right, anything further on that?

MR GARRISSON:   I have nothing further on that, your Honour.  Noting the fact that if the matter is referred or, indeed, the issue as to the basis for the present application, there is an issue of notification of ACT law and its commencement.  They will no longer be an issue within a matter of days, one presumes.  They were raised in the defence as a matter of formality, given the point at which that pleading was being constructed.

FRENCH CJ:   Yes.

MR GARRISSON:   I have nothing further to add, your Honour.

FRENCH CJ:   I will ask Mr Gleeson in a moment about his response, but I have in mind that in addition to the proposed questions I should insert a question after question 6 in the following terms:  “In light of the answers to the preceding questions what, if any, orders should be made for the final disposition of these proceedings?”

MR GLEESON:   Yes, if your Honour pleases.

MR GARRISSON:   Yes.

FRENCH CJ:   Then 7 would become 8 and that would read, “What orders should be made in relation to costs of the questions reserved and of the proceedings generally?”

MR GARRISSON:   Yes, your Honour.

FRENCH CJ:   All right, thank you.  You are happy with the timetable?

MR GARRISSON:   Yes, your Honour.

FRENCH CJ:   Yes, and that is on the basis that we go to a hearing on 3 and 4 December.

MR GARRISSON:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Nothing to add, your Honour.

FRENCH CJ:   I will make orders then in terms of the minute attached as attachment A to the submissions filed by the Commonwealth.  First of all, granting leave to amend the statement of claim by amendment of paragraph 36 as per the amended statement of claim filed on 28 October 2013.  Then reserve the questions set out in paragraph 2 of the proposed orders 1 through to 6, and then inserting as 7 the question, “In light of the answers to the preceding questions what, if any, orders should be made for the final disposition of these proceedings?”  And question 7 becomes question 8 to read, “What orders should be made in relation to costs of the questions reserved and of the proceedings generally?”

Then the timetable set out in paragraph 3 which requires the filing of a Questions Reserved book by 8 November, submissions and chronology by 13 November, interveners to file and serve annotated submissions by

13 November, list of authorities from the plaintiff and interveners in support of the plaintiff by 14 November, annotated submissions to be filed and served by the defendant and interveners in support of the defendant by 25 November, the defendant and interveners in support of the defendant or in support of neither party to file and serve a list of authorities by 26 November, the plaintiff to file and serve annotated submissions in reply by 29 November and the defendant to file and serve any annotated submissions in reply to the submissions of any interveners in support of neither party by 29 November.

So that order will be in terms of the minute. Then paragraph 4, save as to timing, Part 44 of the High Court Rules 2004 (except rule 44.06) applies to this proceeding as if it were an appeal. Order 5, the matter be listed before the Full Court on 3 December 2013 for two days. And order 6, the costs of this directions hearing be reserved.

MR GLEESON:   May it please the Court.

FRENCH CJ:   The orders in those terms.  Thank you.  The Court will now adjourn.

AT 2.22 PM THE MATTER WAS ADJOURNED