The Commonwealth of Australia v The Australian Capital Territory

[2013] HCATrans 257

[2013] HCATrans 257

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

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 OCTOBER 2013, AT 11.12 AM

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)

MS K.L. EASTMAN, SC:   May it please the Court, I appear with MS H. YOUNAN for the defendant.  (instructed by ACT Government Solicitor)

HIS HONOUR:   Yes, Mr Solicitor.

MR GLEESON:   Your Honour will know that the ACT Assembly passed the Marriage Equality (Same‑Sex) Act 2013 (ACT) on Tuesday of this week, 23 October.  It is now a law of the Territory subject to these proceedings.  We understand it is likely to commence on 7 November 2013 and the intention of the ACT is that marriages of a same‑sex character would be solemnised under that Act from 7 December 2013 onwards.

Your Honour will appreciate that the short issue in the proceedings is one of law.  The Commonwealth contends that the Territory law is of no effect and the essential question is whether the Marriage Act 1961 (Cth) supplemented by the Family Law Act 1975 (Cth) provides for a uniform law throughout Australia establishing the sole and exclusive means under our law by which the status of marriage or a form of marriage can be held or attained.

Your Honour, I have mentioned the issue in the proceedings only for these two purposes.  One is that the issue is self‑evidently of importance to the Commonwealth, to the Territory and to the people of Australia.  Secondly, to the extent that we are looking at how soon the matter can be got ready for a hearing, subject to the Court’s availability, it can be got ready quickly.  The essential task is going to be written submissions on both sides, and not much else.

Your Honour may have seen that this morning we received a request for particulars, which will not slow down the proceedings.  We have already answered that request and indicated that each of the requests concerns a matter of law, not fact, and therefore does not need particulars save for one, which is the proposition that marriage is an important institution in Australia, which we would be surprised if the Territory denied.  If we are put to proof, we ask the Court to find that as a matter of judicial notice.

So, your Honours, essentially, where we are today is this.  We are seeking from the Court the three directions which are in the summons which would see the matter back before the Court if possible next week, at which point we would be asking the Court to make the directions which are set out in paragraph 18 of our written submissions.  They are directions which are capable of being complied with if there is a bit of effort between the parties and any interveners and they are directions which would place this matter in the position whereby, if it were at all possible, it could receive a hearing from the Court this year.  That is of course a matter for the Court, but our aim as the Commonwealth is to make sure everything is done by us and we would hope by the ACT such that the matter is in a position where it is ready for hearing by late November.

Your Honour, the only other matters I need to mention are the roadblocks which the ACT has put up to the matter being ready by then are essentially four.  The first is they need the particulars.  I have dealt with that.  The second is the timetable may be too tough on the interveners.  The interveners know of these proceedings.  The 78B notices have been issued.  Any other interveners can get cracking if they wish to seek to be involved.  That should not be an issue.  The third matter is that the Court would need a special case.  We think that is unlikely.  This is probably in that fairly rare category where every issue is one of law, save for the question of judicial notice I mentioned.

Your Honour, the only other matter I need to respond to is there is a proposition from the ACT that the fears we have raised about uncertainty if marriages occur at a time when the Act is yet to receive its hearing in the Court are hypothetical says the ACT.  On that, could I just ask your Honour to go to our submissions, the written submissions, to pages 8 and 9 as but some examples – and we have provided your Honour with a short bundle of documents which contain the statutory text.  If these marriages go ahead from 7 December the way the ACT legislation is intended to work, the same‑sex marriage will be treated as a marriage for the purpose of all other ACT legislation.  The result is that if the Act is valid, provisions such as those you see in the Married Persons Property Act will apply.  If the Act is invalid, those provisions will not apply.  That is the first example.

The example under the Wills Act is perhaps more stark.  If the Act is valid, if the person marries and then dies the will will be automatically revoked and the estate will go on intestacy.  If the Act is invalid the will will remain in force and property will be distributed under the will.  Finally, your Honour might note on page 10 at paragraph 11 that at common law and equity a number of established presumptions and rules depend upon the status of marriage.  If people marry under this Act there will be uncertainty as to how the common law and equity would respond.

Your Honour, for those reasons we would be asking the Court to make the three directions which are in our summons.  We would be asking the Court to consider, at least provisionally, the reasonableness of the indicative timetable in paragraph 18 and we would be asking the Court in due course to give whatever attention could possibly be given to expediting this matter with a view to a hearing in 2013.  If the Court pleases.

HIS HONOUR:   Now, can I just ask you a couple of questions.  Firstly, is the Commonwealth’s case dependent upon any premise about the scope of the marriage power?  It does not appear from the pleading – I am just ‑ ‑ ‑

MR GLEESON:   The answer to that question is no, your Honour, and in fact it does not depend on that question that if asked by the Court what is the Commonwealth’s position the Commonwealth will not argue that the marriage power would preclude the Commonwealth Parliament from passing a law in the form of the ACT law.  So we will not be arguing for any narrow view of the marriage power.  For that reason - we will make that clear in the submissions, but we do not intend to hinge our argument around that question in any more particular fashion than I have just indicated.

HIS HONOUR:   A question which really arises out of the response by the defendant to your submissions – and I am treating the writ as incorporating a statement of claim ‑ ‑ ‑

MR GLEESON:   If your Honour would, please ‑ ‑ ‑

HIS HONOUR:   Paragraphs 11 through to 16 of the statement of claim, how do they inform the debate about section 28 inconsistency, or otherwise, repugnancy?

MR GLEESON:   Only in this sense, your Honour – in a legal sense, not a factual one – that when one is construing the Marriage Act, which is the central exercise in the case, one will do so in accordance with its text, its structure, its purpose and the background explanatory material but against a framework that it is dealing with an institution of marriage which has this broader recognition in various areas of law and against that background, as it were, the Marriage Act has the central intention that we plead in paragraph 24. 

So, your Honour, paragraph 24 of the writ or the statement of claim, that is the essential construction of the Act that we argue for and so when it comes to section 28 inconsistency we will argue that if paragraph 24 is correct, whatever meaning is given to section 28, the ACT Act will inevitably be inconsistent because it has purported to do the very thing which the federal Act has excluded, namely treat marriage as multiple, whereas marriage under the federal Act is indivisible.

Your Honour, for those reasons, although we have received this request for so‑called particulars of 11 to 16, in effect they are matters which

we are flagging they will play that form of background role in the argument.  In one sense, the pleading could survive without them but they are there ‑ ‑ ‑

HIS HONOUR:   That is what I was going to ask you, whether they are really ‑ ‑ ‑

MR GLEESON:   Yes.  The only one, your Honour, that involves a real question of fact is paragraph 14.  As I say, if Ms Eastman for the ACT wishes to not deny that we would be rather surprised, but 14 has a factual component to it and we would be asking the Court, if the ACT were to deny it, to take judicial notice of that fact.  But apart from that, 11, 12, 13, 15 and 16 will be part of the legal argument.

HIS HONOUR:   Well, that will be part of your argument, I would think, would it not?

MR GLEESON:   Yes, and it really provides the background to 17, which is a point of law as to whether the Act truly has that object, and then the case stands or falls on paragraph 24, and perhaps similarly on paragraph 29.

HIS HONOUR:   Are you running an “inconsistency of purpose” argument?  You are not just running a disguised “covering the field” argument, are you?

MR GLEESON:   No, we are not running that.  We are saying that the essential purpose of the federal Act is to establish a single and indivisible definition of “marriage” which will be marriage for the law of Australia, so that the federal Act has said there shall not be other and different forms of marriage.  So another example would be, could the ACT pass the ACT Trial Marriage Act whereby one goes through the same ceremony, the same registration, the same solemnisation, but the marriage has a sunset clause of five years.  Our submission to that would be no, because that is another attempt to create a different form of marriage which shatters the indivisibility of the federal construct.

HIS HONOUR:   Can I take it from what you have just said in relation to paragraphs 11 to 13, 15 and 16 that you do not actually need those in your statement of claim?

MR GLEESON:   That is correct.

HIS HONOUR:   All right.  I might hear from Ms Eastman then, thank you.

MS EASTMAN:   Your Honour will see that matters have moved along a little from the submission that we filed this morning.  We have now had clarification that the writ also stands as a statement of claim and your Honour will have seen that we identified some concerns as to whether or not some conclusions and some assumptions as they appear in the writ were matters which we, on behalf of the Territory, were asked to plead to.  We have been provided with some explanation by way of particulars of those matters, but I think we are assisted by my learned friend’s concession that those matters are not important.

From the Territory’s perspective, we still think that there is some utility in following the procedure contemplated by the rules with respect to the preparation of a special case so that the parties can at least reach some agreement with respect to the facts, the documents that are necessary to enable the Court to decide the questions raised and an agreement on the questions.  We do not think that the preparation of a special case so that a case can be stated for the Full Court should delay matters, but your Honour will have seen in our submissions our concern is that things be done in an orderly way giving the parties sufficient time.

Your Honour will see that the timetable that the Commonwealth proposes requires us to either demur or to file a defence by Wednesday.  The timetable that the Commonwealth proposes gives us five working days to file our submissions in reply to the Commonwealth and all of the interveners.  We have no objection on behalf of the Territory for the matter to be heard at the earliest opportunity, but the earliest opportunity should not be to the prejudice of the parties in ensuring that this important matter can be prepared.

HIS HONOUR:   Ms Eastman, what I had in mind was this.  On the assumption that we might be able to work to a hearing date in the second week of the December sittings, I would look to you filing a defence or demurrer by 1 November and then bringing you back for second directions on 4 November, at which time we could determine whether the matter was going to proceed by way of a demurrer referred to the Full Court or whether a special case would have to be prepared.  But the special case, it would seem to me, could be fairly tightly confined and would not require a lot of documentation.

MS EASTMAN:   We would hope not, but we do think that the Court might be assisted by at least some documentation.

HIS HONOUR:   Yes.

MS EASTMAN:   The Commonwealth has indicated to us during the course of the morning that in answer to our request for some of the particulars that by next Monday we will be provided with a list or a bundle

of the relevant statutes that are referred to in the writ.  So there are some outstanding matters, but I do not think, your Honour, we ‑ ‑ ‑

HIS HONOUR:   It may well be that those paragraphs could be dropped from the statement of claim.  It will be a matter for the Commonwealth, of course, and they would no doubt reappear in submissions.

MS EASTMAN:   They seem to us, with due respect to our learned friends for the Commonwealth, more to be a submission or a conclusion that might be urged upon the Court.  But from the Territory’s perspective, we wanted to ensure that at least the material before the Court and relevant for a stated case was clear.

HIS HONOUR:   Yes.  Well, do you have any difficulty with the notion of filing a defence by 1 November and coming back at, say, 2.15 on the 4th in Canberra?

MS EASTMAN:   We are content with that, thank you, your Honour.

HIS HONOUR:   I will ask the Solicitor.

MR GLEESON:   Yes, we are content with that, your Honour.

HIS HONOUR:   All right.  Mr Solicitor, you might like to give fairly prompt consideration to whether you need to file an amended statement of claim if you are not going to rely upon those particular paragraphs as part of your pleading.

MR GLEESON:   Yes.  If your Honour could permit us until 4.00 pm Monday to file such a document, if advised.

HIS HONOUR:   Yes, all right, thank you.  The directions will be:

1.The plaintiff have leave to file and serve an amended statement of claim with respect to paragraphs 11 to 13, 15 and 16 by 28 October 2013.

2.The defendant to file and serve its defence and/or any demurrer by 1 November 2013.

3.The directions hearing will be adjourned to 2.15 pm on 4 November 2013 in Canberra.

4.Costs of today reserved.

MR GLEESON:   May it please the Court.

MS EASTMAN:   Thank you, your Honour.

HIS HONOUR:   All right, the Court will adjourn now.  Thank you.

AT 11.30 AM THE MATTER WAS ADJOURNED