Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

My question is to the Attorney-General, Senator Brandis. Can the Attorney-General update the Senate of the decision of the High Court regarding the validity of the ACT same-sex marriage laws?

Opposition Senators:

Opposition senators interjecting—

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

Clowns!

John Hogg (President) Share this | Link to this | Hansard source

Order! I call the Attorney-General.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I thank the honourable senator for his question. A short while ago, the High Court gave its decision in the Commonwealth's proceedings seeking a declaration of invalidity against the ACT's same-sex marriage legislation. As a result of the decision, the judges decided in a unanimous joint judgment of six of Their Honours to uphold the Commonwealth's legal challenge. One member of the court, Justice Gageler, recused himself, I understand because, as Commonwealth Solicitor-General, His Honour had given legal advice to the Commonwealth.

The Commonwealth welcomes this decision. The basis upon which the decision was reached by Their Honours was the supremacy of the marriage power in section 51(xxi) of the Constitution. I will read a couple of sentences from the statement that the court published:

The Marriage Act provides that a marriage can be solemnised in Australia only between a man and woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia. That act is a comprehensive and exhaustive statement of the law of marriage.

As a result, the inconsistent provisions of the ACT legislation were held to be void and of no effect. As I said on 10 October when I announced that the Commonwealth would initiate these proceedings:

Irrespective of anyone's views on the desirability or otherwise of same-sex marriage, it is clearly in Australia's interests that there be nationally consistent marriage laws.

At the moment, the Commonwealth Marriage Act provides that consistency. That is the position which the High Court, I am pleased to say, has upheld today.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a supplementary question. What is the appropriate reaction of members of parliament to decisions of the High Court?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The appropriate reaction of members of parliament, irrespective of their political positions, to decisions of the High Court is always to respect the authority of the court. I might say that even if the decision had gone the other way, and the Commonwealth's proceedings had been dismissed rather than upheld, my answer would have been the same. It is imperative that all members of parliament, irrespective of their personal opinions, uphold and respect the authority of decisions of the courts.

That has not always been the case. I recall that under the previous government, in September 2011 when the High Court gave its decision in the Malaysia solution case, the High Court and individual members of the court were attacked by members of the cabinet and by the Prime Minister.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a further supplementary question. Why is it important that members of parliament respect decisions of the High Court?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

It is important because the High Court is the final arbiter of legality in this country, and no minister of this government will do what ministers of the previous government did and attack decisions of the High Court and attack members of the High Court by name when a decision is resolved against the executive.

In the Malaysia solution case, the then Prime Minister, Ms Gillard—

Opposition Senators:

Opposition senators interjecting—

John Hogg (President) Share this | Link to this | Hansard source

Order! Senator Brandis, you are entitled to be heard in silence.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The then Prime Minister, Ms Gillard, shamefully attacked the integrity of the Chief Justice, and an unnamed senior member of the cabinet allowed himself to be quoted in the newspapers as saying:

… Robert French has zero credibility.

That was a disgraceful thing to do, and it was disgraceful that the then Attorney-General stood by and allowed it to be done. This government will always respect the authority of the High Court and its members.