The High Court struck down the ACT legislation which attempted to legalise same sex marriage – to read the decision itself, follow this link.
The background:
- The Australian Capital Territory introduced recently the Marriage Equality (Same Sex) Act 2013 to allow “marriage” for same sex couples.
- The Federal Marriage Act 1961 provides for marriage between a man and a woman, and provides that a union solemnised in a foreign country between a same sex couple cannot be recognised in Australia.
- The Commonwealth of Australia, following the enactment of the ACT legislation, brought certain questions to the High Court of Australia, to resolve the issue of whether the ACT legislation was inconsistent with the Marriage Act and, if so, the impact of that inconsistency.
In a joint, unanimous decision of 6 Justices of the High Court found that the whole of the ACT legislation was inconsistent with the Marriage Act.
Section 51(xxi) of the Constitution provides the Federal Parliament power to make laws with respect to “marriage”.
Section 51(xxii) provides the Parliament powers with respect to divorce, matrimonial causes, parental rights and custody and guardianship of infants.
The High Court needed to assess whether those provisions also gave the Federal Government power to make laws with respect to same sex marriage, because if the Constitution did give that power to the Federal Government, and if the Federal Government has provided that the only form of marriage shall be between a man and a woman, then the Commonwealth legislation and the ACT legislation cannot operate concurrently.
The Court found that section 51(xxi) of the Constitution gave the Federal Government power with respect to same sex marriage.
The ACT legislation provided the “marriage” pursuant to that Act was the union of 2 or more people of the same sex, but did not include “marriage” within the meaning of the Marriage Act. Otherwise, the High Court described the ACT legislation as “very similar” to provisions of the Marriage Act or the Family Law Act.
Although section 109 of the Constitution was relevant, the critical issue was whether section 28 of the ACT (Self-Government) Act 1988 is inconsistent with, and cannot operate with, a Federal Law in the Territory.
The High Court said that the ACT legislation could not operate concurrently with the Marriage Act, because giving effect to the ACT legislation would “alter, impair or detract from” the Marriage Act.