High Court throws out ACT's same-sex marriage laws

Ivan Hinton (R) and Chris Teoh (L), with marriage celebrant Roger Munson (top-C), are married at Canberra's Old Parliament House on December 7, 2013.
Ivan Hinton (R) and Chris Teoh (L), with marriage celebrant Roger Munson (top-C), are married at Canberra's Old Parliament House on December 7, 2013. AAP/AFP Andrew Taylor

THE High Court has overturned the Australian Capital Territory's same sex marriage laws, in a unanimous decision backing the Commonwealth's challenge to the laws.

The decision of the full bench effectively nullifies more than 20 marriages ceremonies completed since the ACT laws came into effect last week.

Backed by Democratic Labour Party Senator John Madigan, the decision has angered The Greens, who have today introduced a bill to legalise same sex marriage in Commonwealth law.

The Court's decision will also effectively rule out future marriage equality laws at  a state level, confirming that state government's cannot create their own marriage laws under the current national laws.

Sen Madigan said he agreed with the Court's decision, but that it should not be made by a Court or the parliament, urging for a national referendum to decide the issue.

He said the issue of marriage equality was not going to go away, but that a referendum could put it "to rest once and for all".

But Greens Senator Sarah Hanson-Young said the nation "is ready for this", and it was time the federal parliament acknowledged the support for same sex marriage by changing the Commonwealth's laws.

COMMENT: Time to let people, not pollies, decide on gay marriage


 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.

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.

Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.

The Court held that the whole of the ACT Act is of no effect.


Topics:  gay marriage marriage equality same-sex marriage

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