London, 18 December 2013

On 12 December 2013, the High Court of Australia issued its judgment in The Commonwealth v Australian Capital Territory, a case relating to the status of the Marriage Equality (Same Sex) Act 2013, a regional law enacted in October 2013 which permitted same-sex marriage in the Australian Capital Territories (ACT). As was expected, the High Court found that the Act was inconsistent with federal law on marriage, which defines marriage as a union between a man and a woman. 

Accordingly, the Court held, the Act was of no effect. It was for the federal Parliament to legislate for same-sex marriage, not the States and Territories. However, the High Court gave the important acknowledgement that it was within the federal Parliament’s constitutional powers to legislate for same-sex marriage.

The High Court was asked to consider whether the ACT’s Marriage Equality (Same Sex) Act 2013 was inconsistent with or repugnant to either or both of two Acts of the federal Parliament: the Marriage Act 1961 and the Family Law Act 1975. Furthermore, the court was asked to consider, if it was so inconsistent or repugnant, to what extent the Act was of no effect.

The High Court held that the Marriage Act regulated the whole domain of “marriage” status and that the ACT Act, whose definition of “marriage” was inconsistent with that of the Marriage Act, could not stand concurrently with it. Specifically:

• the Constitution gives the federal Parliament the power to legislate on issues of “marriage”;
• the status of marriage and the rights and obligations which attach to it are not immutable, meaning that the federal Parliament does have the power to amend, limit and extend marriage rights and the classes of persons who may enjoy those rights;
• the federal Parliament has the power to make a national law providing for same-sex marriage, but federal law currently provides that the only form of marriage shall be between a man and a woman;
• so long as the Marriage Act continues to define “marriage” as it currently does, only a marriage conforming to that definition may be formed or recognised in Australia;
• the Marriage Equality (Same Sex) (ACT) Act 2013 uses a definition which does not conform with that of the Marriage Act. The whole Act has no effect.

ERT welcomes the court’s recognition that the Australian Constitution permits the federal Parliament to legislate for same-sex marriage. But it is concerned that Australia continues to fall short of recognising the equal right to marriage for same-sex couples and urges that this be rectified. ERT urges Parliament to legislate to amend the definition of marriage contained in the Marriage Act, which is based on an outdated notion of the family and falls short of protecting the rights of gay couples to a private and family life.

To read ERT’s Case Summary click here

To read the judgment of the High Court of Australia click here