Marriage Equality Passes into ACT Law But Certain to Face High Court Challenge

Wednesday 23 October 2013 @ 10.23 a.m. | Legal Research

The Australian Capital Territory (ACT) Marriage Equality Bill 2013, presented in the ACT Legislative Assembly on 19 September 2013, has passed into law making same sex marriage legal in the ACT and making the ACT the first Australian jurisdiction to legalise same-sex marriage.

As the ABC Reports today (23 October 2013) the ACT Labor Government "has passed its Marriage Equality Same-Sex Bill in the Legislative Assembly with the help of Greens MLA Shane Rattenbury".

What the new law seeks to do?

The new law allows couples who cannot marry under the existing marriage laws of the Commonwealth, namely the Marriage Act 1961 (Cth) (the Commonwealth Act) because of the way marriage is defined under that Act (that is, requiring marriage to be only between a man and a woman) to enter into a marriage, regardless of their sex, under the laws of the ACT. 

Under the new ACT law a person may be married under the law only if:

  • the person is an adult; and
  • the person is not married (this will include marriage under the Commonwealth Act, marriage under the ACT Law as well as marriage under equivalent laws); and
  • the person cannot marry their proposed spouse under the Commonwealth Act because it is not a marriage within the meaning of that Act; and
  • the person does not have a prohibited relationship with their proposed spouse.

The ACT law is based on the Marriage Equality Bill (NSW) and replicates some regulatory provisions from the Civil Unions Act 2012 (ACT) as well as including provisions from proposed laws in other jurisdictions to ensure the ACT law reflects the ACT’s "established and comprehensive policies on relationship law by including the latest thinking around marriage equality".

The Civil Unions Act  2012 (ACT) is repealed and provisions dealing with the ending of a civil union are transferred to the Domestic Relationships Act 1994 (ACT). The law amends the Domestic Relationships Act 1994 (ACT)  to extend provisions in that Act for the division of property, financial adjustment and maintenance and financial agreements to marriages under the new ACT law.

What's ahead for the ACT Law?

The Federal Government has, as the ABC Reports already confirmed, said it will go ahead with a High Court challenge to the ACT's new law and, as indicated earlier this month by the Federal Attorney General Senator George Brandis, the likely basis of constitutional challenge will be that the ACT law is "invalid by reason of inconsistency" with the Marriage Act 1961 (Cth). The Constitution (Cth) provides in s 109 that:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

Reaction

The ABC reports that the Federal Government has issued the following warning to those contemplating marriage under the new law:

"It would be very distressing to individuals who may enter into a ceremony of marriage under the new ACT law, and to their families, to find that their marriages were invalid . . ."

A position apparently supported by the ACT Opposition and its Leader.

The Greens through their leader Christine Milne have repeated the call for the Federal Government to abandon any challenge saying that the current Federal Government are "on the wrong side of history" in this issue which has a high level of public support.

Meanwhile the view of the Federal Opposition has been reported through Shadow Attorney-General Mark Dreyfus who has welcomed the ACT laws saying:

"Good on the ACT Government for moving forward with this, . . . It is a step forward but we need to have this nationally, we need to have a national debate and the place for it is in the national Parliament, not in the High Court of Australia."

While the law has passed from current reports, this appears to have been the easiest part to realise, as this issue legally and politically remains an interesting and developing space to watch.

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