Michael Whincop Memorial Lecture 2015
The ACT Marriage Equality Case in the High Court: The Final Death of Originalism?
Held: Thursday 10 September, 2015
Where: Auditorium 1, State Library of Queensland, South Bank
Speaker: The Hon Michael Kirby AC CMG
About this lecture
After the successful Irish Referendum in May 2015, the issue of same sex marriage in Australia is another story. In the Commonwealth v ACT (2013) 250 CLR 441 the High Court of Australia held that the ACT's Marriage Equality (Same-Sex) Act 2013 was constitutionally invalid and of no effect because the federal Marriage Act 1961 provided a comprehensive and exhaustive statement of the law with respect to marriage. It thus left no space, under the Australian Capital Territory (Self-Government) Act 1988, for the intrusion of a valid Territory law. The decision, reached unanimously and after reserving for only 10 days, disappointed proponents of marriage equality. But it also disappointed opponents because the court took the occasion to make it clear that the constitutional power with respect to marriage (s 51 (xxi)) extended to the enactment of a federal gay marriage statute. That conclusion could not be reached if the court had been of the view that the meaning of the Constitutional ’’marriage’’ power was confined to the understanding of ‘’marriage’’ in 1900. So, is this clear ruling by the High Court the final coup de grace to the originalist interpretation of the Australian Constitution? Was the ruling necessary? If so, is it to be welcomed?
About the speaker
The Hon Michael Kirby was Australia’s longest serving judge when he retired from the High Court of Australia in 2009. Following his judicial retirement, Michael Kirby was elected President of the Institute of Arbitrators & Mediators Australia from 2009-2010. In 2010, he was appointed to the Australian Panel of the International Centre for Settlement of Investment Disputes (World Bank). He also serves as Editor-in-Chief of The Laws of Australia. In 2010, Michael Kirby was awarded the Gruber Justice Prize. He served 2011-12 as a member of the Eminent Persons Group investigating the future of the Commonwealth of Nations. He was appointed as a Commissioner of the UNDP Global Commission of HIV and the Law. In March 2011, he was appointed to the Advisory Council of Transparency International, based in Berlin. In 2013, he was appointed Chair of the UN Commission of Inquiry on Human Rights Violations in North Korea. He was also appointed in 2013 as a Commissioner of the UNAIDS Commission on moving from AIDS to the Right to Health (2013-2014).
About The Michael Whincop Memorial Lecture Series
The Michael Whincop Memorial Lecture was inaugurated in 2004 to honour the contribution that the late Professor Michael Whincop made to the development of legal scholarship. The lecture series aims to celebrate Michael's commitment to research excellence and innovation.
Professor Michael Whincop (1968-2003)
Professor Michael Whincop was a leading Australian and international scholar, particularly in the areas of economic analysis of law and company law. He joined the Griffith Law School in 1994 as a Lecturer and was promoted three times within only eight years, being promoted to Full Professor in 2002 at the age of 33.
Michael researched in a wide range of areas and published very extensively. He made substantial contributions to the development of the Griffith Law School, particularly in establishing its research reputation and in implementing its policies concerning excellence in teaching and learning.
Michael’s well-organised approach to teaching and his dry wit is fondly remembered by his former students.