The right to marry is the one significant remaining difference between the legal treatment of same-sex and heterosexual relations in Australia. While there has been a shift in community and political opinion, the issue of same-sex marriage remains complex and controversial for some— raising human rights and constitutional law issues, as well as a raft of social, religious, moral and political questions. For a fuller account see the Parliamentary Library’s Briefing Book brief
and Background Note
on same sex marriage.
In terms of the Constitution, both the Commonwealth and the states can make laws regarding marriage, however should the state law be in inconsistent with the Commonwealth law ( the Marriage Act), the Commonwealth law would prevail and the state law would become inoperative to the extent of the inconsistency.
At federal level, marriage equality reform has so far been unsuccessful. In the 43rd parliament several same-sex marriage bills
were introduced but failed to be passed. In the current parliament, the fate of any potential legislation is unknown with Prime Minister Abbott indicating
prior to election that he does not see the issue as a priority for a Coalition Government.
Introducing same-sex marriage at a state and territory level has therefore been seen as a fall-back position for marriage equality advocates with several states, including New South Wales, Tasmania and South Australia making various attempts to introduce same-sex marriage laws.
It was however the ACT that established Australia’s first same-sex marriage laws. One report suggests that around 30 same-sex marriages have been performed since 7 December, the date when, due to notice requirements, marriages could first occur.
On 25 October 2013, one day after passage of the Marriage Equality Act, the Commonwealth launched its constitutional challenge to the legislation. At the Commonwealth’s request, the High Court expedited the matter with hearings being held on 3 December and the Court reserving judgement until 12 December.Before the Court
The case before the Court was argued not on human rights issues but on questions of federalism and the inconsistency of laws.
Professor Anne Twomey has critiqued
of the parties. In summary she states:
The Commonwealth argued that it has the power to legislate in relation to all forms of marriage including same-sex marriages. The Commonwealth Marriage Act was intended to cover the entire field of marriage in Australia to the exclusion of any state or territory laws on the subject and that the ACT law is therefore invalid for trespassing into this field.
The ACT, on the other hand contended the Commonwealth’s Marriage Act deals only with the legal status of opposite-sex couples and that it does not prohibit or exclude laws conferring the status of marriage on others, including same-sex couples, or a status that is intended to equate to marriage. The Decision
, the Court held that ‘marriage’ in s51(xxi) of the Constitution includes a marriage between people of the same sex. The Marriage Act provides that a marriage can only take place between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia. This is ‘a comprehensive and exhaustive statement of the law of marriage’ in Australia. The ACT Act cannot operate concurrently with the Marriage Act, and is therefore of no effect.Implications
What happens to those same-sex marriages performed in the ACT since 7 December? The effect of the High Court decision is that the Marriage Equality Act was an invalid law. Therefore, the marriages performed under this invalid law were also invalid— from a legal standpoint they were never marriages, just words spoken. However some would say that those ‘marriages’ were not in vain— that they had a social and psychological effect of making same-sex marriages more acceptable.
Where does the debate about same-sex marriage go from here? The High Court decision has clarified two key issues. Firstly by stating that the Commonwealth Marriage Act is comprehensive, the Court has ruled out the possibility of any state or territory same-sex marriage legislation. Secondly, the Court has defined the meaning of ‘marriage’ in the Constitution to include same sex marriage thereby giving the Commonwealth Parliament clear power to make laws with regard to same-sex marriage.
The likely effect is to bring a renewed focus on the prospects for change to marriage laws back into the federal arena.