Marriage Equality Act in ACT challenged in the High Court

Monday 28 October 2013 @ 12.24 p.m. | Legal Research

As previously reported by TimeBase, the Marriage Equality Bill 2013 (ACT) has been passed by the full Legislative Assembly and is awaiting notification. Pre-empting the notification, last Friday (25 October 2013), both the Commonwealth and Australian Capital Territory appeared by special leave in front of Justice French in the High Court of Australia to argue their case.

In a directions hearing at approximately 2pm last Friday, Justice French discussed preliminary matters such as dates and times for submission. Neither part has yet made their submissions to the court.

The ACT argues that the new law has been framed to work concurrently with the federal Marriage Act.

However, The Commonwealth’s position is the ACT law is invalid because it is inconsistent with the Marriage Act 1961 (CTH) and the Family Law Act 1975 (CTH). The federal Marriage Act 1961 specifies that marriage is between a man and a woman, and the Family Law Act 1975 regulates issues such as divorce.

The Commonwealth wants the decision by the Court to be expedited before the first marriages predicted to happen in December begin.

In seeking the expedited hearing, the commonwealth argued it wished to establish the legality or otherwise of the new regime in order to spare gay couples any uncertainty.

The prime minister, Tony Abbott, has advised same-sex couples not to use the new laws until the high court makes its determination.

Chief Minister Katy Gallaghersaid on Thursday the government was open to making further amendments before a full High Court hearing but it remained unconvinced that they were necessary. The government has also expressed concern that further amendments could water down the law.

In another jurisdiction, New South Wales has announced plans to introduce legislation into the NSW Legislative Council this week (31 October) that seeks to allow same-sex couples to marry in NSW.

The Bill’s introduction follows a process of detailed community and legal consultation, including a NSW Parliamentary Inquiry, that found: “The State of New South Wales has the constitutional power to legislate on the subject of marriage”.

This opinion has been verified by constitutional lawyer Bret Walker SC who stated “… we consider that the NSW Bill seeks to create and regulate a new status called ‘same-sex marriage’ not the existing status of marriage. Accordingly… in our view, an act of the Form of the NSW Bill would not be inconsistent with the Marriage Act 1961 (Cth)”.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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