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(Dec 19, 2013) On December 12, 2013, the High Court of Australia (Australia's highest court) ruled that a law granting same-sex couples the ability to marry in the Australian Capital Territory (ACT) is invalid because it is inconsistent with the federal Marriage Act 1961. (The Commonwealth of Australia v. The Australian Capital Territory [2013] HCA 55, AUSTLII; decision summary, High Court of Australia website (last visited Dec. 18, 2013).)

The ACT Legislative Assembly enacted the Marriage Equality (Same Sex) Act 2013 on October 22, 2013. (Marriage Equality (Same Sex) Act 2013 (ACT), ACT website.) The federal (i.e. "Commonwealth") government subsequently challenged the legislation, arguing that it was inconsistent with the Marriage Act 1961 and that this Act "leaves no room for there to be any other laws in Australia which purport to clothe a union with the legal status of marriage (or a form of marriage)." (The Commonwealth of Australia v. The Australian Capital Territory, Annotated Submissions of the Plaintiff ¶ 24 (filed Nov. 13, 2013), High Court of Australia website.) The ACT argued that the territory's same-sex marriage legislation could operate concurrently with the federal law, as the Commonwealth "has not exhausted its legislative power with respect to either recognising or prohibiting same sex marriage." (The Commonwealth of Australia v. The Australian Capital Territory, Annotated Submissions of the Australian Capital Territory ¶ 6(d) (filed Nov. 25, 2013), High Court of Australia website.)

Marriage as Defined Under the Constitution and the Marriage Act 1961

The Australian Constitution grants the federal Parliament the ability to legislate in the area of "marriage." (Constitution of Australia, s 51(xxi) (last updated Sept. 4, 2013).) This is not an exclusive power, however; Australian states and territories have concurrent powers to enact legislation in the areas listed in section 51 of the Constitution, provided that the law is not inconsistent with federal legislation. Where a state law is inconsistent with a federal law, the former will be invalid to the extent of the inconsistency. (Id. s 109.) Furthermore, the Australian Capital Territory (Self-Government) Act 1988 (Cth) provides that an ACT enactment will have no effect to the extent that it is inconsistent with a law in force in the territory (which includes federal laws), "but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law." (Australian Capital Territory (Self-Government) Act 1988 (Cth), s 28, COMLAW.)

The Marriage Act 1961 (Cth) currently defines "marriage" as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life." (Marriage Act 1961(Cth), s 5, COMLAW.) This definition was added as a result of amendments passed in 2004, which also inserted a new provision stating that same-sex unions solemnized in foreign countries must not be recognized as marriages in Australia. (Marriage Amendment Act 2004 (Cth), COMLAW.)

The ACT legislature sought to avoid inconsistency with the federal law by defining "marriage" in its 2013 Act as "(a) the union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life; but (b) does not include marriage within the meaning of the Marriage Act 1961 (Cwlth)." (Marriage Equality (Same Sex) Act 2013 (ACT), s 3.)

The Court Decision

The High Court considered that while the federal Parliament "has not made a law permitting same sex marriage," the absence of such a law "does not mean that the Territory legislature may make such a provision" and also "does not mean that a Territory law permitting same sex marriage can operate concurrently with the federal law." (The Commonwealth of Australia v. The Australian Capital Territory [2013] HCA 55 ¶ 56.) It further stated that "[t]he 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage." (Id. ¶ 58.) The inserted provisions, read in the context of the whole Marriage Act, were found to contain "the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia." (Id. ¶ 59.) Therefore, the provisions of the ACT Act that provide for a particular form of marriage "cannot operate concurrently with the Marriage Act and accordingly are inoperative." (Id.)

In conclusion, the Court held that "[s]o 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." (Id. ¶ 61.) The ruling therefore makes clear that only the federal Parliament can legislate for same-sex marriages. (Elizabeth Byrne,High Court Throws Out ACT's Same-Sex Marriage Laws, ABC (Dec. 13, 2013.) In September 2012, the Parliament voted against two bills that would have amended the Marriage Act 1961 (Cth) to provide for same-sex marriage. (Kelly Buchanan, Australian Parliament Votes Down Two Marriage Equality Bills, GLOBAL LEGAL MONITOR (Sept. 26, 2012).)

Under the ACT's Marriage Equality (Same Sex) Act 2013, the earliest that same-sex couples could marry in the Territory was December 8, 2013. (Heath Aston, High Court Challenge to Gay Marriage Will Be Heard Before ACT Ceremonies, THE SYDNEY MORNING HERALD (Nov. 5, 2013).) As a result of the High Court's decision, any marriages occurring between that date and the date of the judgment will be annulled. (Jethro Mullen, Court Shoots Down Short-Lived Same-Sex Marriage Law in Canberra,Australia, CNN (Dec. 11, 2013).)

Author: Kelly Buchanan More by this author
Topic: Families More on this topic
 Marriage and family status More on this topic
 Same-sex marriage More on this topic
Jurisdiction: Australia More about this jurisdiction

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Last updated: 12/19/2013