Commonwealth of Australia vs ACT [2013] HCA 55
Thursday 12 December 2013 @ 12.44 p.m. | Legal Research
Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961 (Cth). 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 Court held that "marriage" in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. "Marriage" in s 51(xxi) includes a marriage between persons of the same sex.
The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only 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. That Act is a comprehensive and exhaustive statement of the law of marriage.
The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises. Accordingly, the ACT Act cannot operate concurrently with the Federal Act.
The Court held that the whole of the ACT Act is of no effect.
Reaction to the High Court's decision
Greens Senator Sarah Hanson-Young said:
''The only way that we will be able to guarantee marriage equality across Australia is to pass reform at a federal level...Australia, as a nation, is ready for this and it's time the Federal Parliament recognised that. With a cross-party marriage group and a clear public majority calling for equality, it is only a matter of time before same-sex marriage becomes a reality nation-wide. Only by working together will this Parliament be able to enact the will of the people and achieve marriage equality."
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