: Over the summer: Same sex marriage and gay sex criminal records

Over the summer: Same sex marriage and gay sex criminal records

Brad Jessup
Federal

It started as a summer of love. On 7 December 2013 in Canberra marriages between people of the same sex were solemnised in Australia for the first time. The marriages were performed and authorized in accordance with the Australian Capital Territory’s Marriage Equality (Same Sex) Act 2013. This Act commenced operation on 7 November 2013, it having been passed by the ACT parliament on 22 October 2013. On the day it commenced couples from around the country began registering their intention to marry after the mandated 30 day wait.

The enactment of the ACT law overshadowed the refusals of other parliaments to pass similar laws leading up to the summer. On 29 October 2013 the Tasmanian Parliament’s Legislative Council, by a margin of 8-6, rejected a motion to reactivate debate the Same Sex Marriage Bill, a bill that had failed to pass both houses of parliament in 2012. Further, on 14 November 2013 the NSW Parliament’s Legislative Council, by a margin of 21-19, rejected the Same Sex Marriage Bill 2013, a Bill curated by a cross-party committee that would have established a form of marriage for same sex attracted people in that state.

Five days after ACT same sex marriages began to take place the High Court invalidated those marriages and prevented any more from proceeding when it handed down its decision in Commonwealth v Australian Capital Territory [2013] HCA 55 (12 December 2013). The High Court sat without Justice Gageler who had as a barrister many years earlier advised the ACT government on the legality of a Territorian scheme for the marriage-like recognition of unions between people of the same sex.

The six judges, in a unanimous judgment, concluded that the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT) was inconsistent with the Commonwealth’s Marriage Act 1961 within the terms and meaning of section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), which is the Act that grants and confines governance functions and powers to the ACT Parliament.

At paragraph 61 the High Court said that:

So long as the Marriage Act continues to define ‘marriage’ as it now does and to provide, in effect, that only a marriage conforming to that definition may be formed or recognised in Australia, the provisions of the ACT Act providing for marriage under that Act remain inoperative. Because those provisions are inoperative, the provisions of the ACT Act which deal with the rights of parties to marriages formed under that Act and with the dissolution of such marriages can have no valid operation.

In interpreting the two pieces of legislation that it determined incompatible, the court made two significant, lasting findings of law.

First, in order to determine the purpose of the Marriage Act 1961 (Cth) and the intention of legislators past, the court relied on the 2004 legislation initiated by the Howard government: the Marriage Amendment Act 2004 (Cth). That Act defined marriage as a union between a man and a woman and prohibited the recognition of same sex marriages solemnised overseas. The High Court (at paragraph 58) noted that these changes to the law signified that the ‘federal marriage law is a comprehensive and exhaustive statement of the law of marriage’ and necessarily determined who could and could not marry in Australia.

Second, the High Court confirmed that ‘marriage’ as it is generally and constitutionally understood could incorporate unions of two people of the same sex (or people of no specified sex). The Commonwealth parliament could, therefore, without the prospect of any constitutional challenge, enact laws to provide for marriage between all people, irrespective of their sex.

The attention of many groups advocating for marriage equality thereafter turned to the federal sphere. Lobbying efforts have been directed in particular at the Coalition government in order to secure a conscience vote on a federal marriage equality bill. This was not a universal shift, however. In Western Australia the Same Sex Marriage Bill was introduced in its parliament on the day of the High Court decision, drafted in a way that attempts to avoid the same fate as the ACT law.

It became a summer of restitution. At the Melbourne Midsumma Festival, the Victorian Premier announced that his government would enact legislation modeled on the UK’s Protection of Freedoms Act 2012, which would remove the criminal records of men for committing so-called ‘crimes of homosexuality’ in the years before consensual sexual activity between adult males was decriminalised by the Crimes (Sexual Offences) Act 1980 (Vic). In the days that followed the Tasmanian, New South Wales and ACT governments, the same states and territory most active in pursuing marriage equality laws, indicated their willingness to consider similar legislation within their jurisdictions.

BRAD JESSUP teaches law at The University of Melbourne.

(2014) 39(1) AltLJ 58
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