High Court decides the ACT’s same-sex marriage law is invalid

Parliament house flag post

High Court decides the ACT’s same-sex marriage law is invalid

Posted 12/12/2013 by Mary Anne Neilsen

Today, 12 December 2013, the High Court decided unanimously that the ACT’s Marriage Equality (Same Sex) Act 2013 cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

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 the submissions 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
In summary, 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.

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.

Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print


Flagpost is a blog on current issues of interest to members of the Australian Parliament

Parliamentary Library Logo showing Information Analysis & Advice




refugees asylum immigration Australian foreign policy Parliament climate change elections women social security Indigenous Australians Australian Bureau of Statistics Employment taxation Sport illicit drugs Medicare welfare reform Australian Defence Force welfare policy Asia income management Middle East criminal law disability Australian Sports Anti-Doping Agency World Anti-Doping Agency United States higher education people trafficking school education aid statistics Australian Electoral Commission WADA United Nations federal budget health financing emissions trading gambling Australia in the Asian Century steroids detention Private health insurance OECD ASADA labour force transport Law Enforcement Australian Federal Police Industrial Relations dental health National Disability Insurance Scheme forced labour Senate election results Papua New Guinea Australian Public Service International Women's Day corruption Fair Work Act child protection people smuggling debt federal election 2013 parliamentary procedure ALP New Zealand Australian Crime Commission Newstart Parenting Payment 43rd Parliament slavery by-election political parties Census constitution High Court skilled migration voting Federal Court terrorist groups Afghanistan Higher Education Loan Program HECS youth Aviation environment foreign debt gross debt net debt defence capability customs poker machines doping health crime health risks multiculturalism aged care Gonski Review of Funding for Schooling sex slavery sea farers leadership United Kingdom UK Parliament Electoral reform politics banking firearms public policy mental health China ADRV terrorism social media pensions welfare ASIO intelligence community Australian Security Intelligence Organisation governance public service reform Carbon Pricing Mechanism carbon tax mining military history employer employee fishing paid parental leave European Union same sex relationships international relations coal seam gas planning United Nations Security Council Australian economy food vocational education and training Drugs Indonesia children codes of conduct terrorist financing election timetable citizenship Productivity asylum seekers early childhood education Canada Population Financial sector national security fuel violence against women domestic violence disability employment Tasmania integrity science research and development Australian Secret Intelligence Service sexual abuse federal state relations World Trade Organization Australia accountability housing affordability bulk billing water renewable energy children's health health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation family assistance expertise Senators and Members climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry food labelling Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets health reform Indigenous constitutional recognition of local government local government consumer laws PISA royal commission US politics language education Leaders of the Opposition Parliamentary remuneration health system Australia Greens money laundering servitude Special Rapporteur Trafficking Protocol energy forced marriage rural and regional Northern Territory Emergency Response ministries social citizenship China; Economic policy; Southeast Asia; Africa housing Speaker; House of Representatives; Parliament Defence High Court; Indigenous; Indigenous Australians; Native Title ACT Indigenous education Norfolk Island External Territories emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories workers Bills anti-corruption fraud bribery transparency corporate ownership whistleblower G20 economic reform innovation standards NATO Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly public health smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine regional unemployment asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies trade unions same-sex marriage disorderly conduct retirement Parliament House standing orders public housing prime ministers sitting days First speech defence budget submarines Somalia GDP forestry world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission regulation limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders animal health live exports welfare systems infant mortality middle class welfare honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Constitutional reform referendum Rent Assistance competition policy pharmaceutical benefits scheme obesity evidence law sacrament of confession US presidential election international days baby bonus DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant homelessness regional engagement social determinants of health abortion Youth Allowance Members suspension citizen engagement policymaking federal election 2010 workplace health and safety Trafficking in Persons Report marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament alcohol Korea rebate Australian Greens presidential nomination Racial Discrimination Act entitlements political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing Hung Parliament political education social inclusion Social Inclusion Board maritime early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin Iran sanctions

Show all
Show less
Back to top