Update on High Court's Decision to Overturn the ACT's Same Sex Marriage Laws

On 28 October 2013 we posted an article about the passing of the ACT's Marriage Equality (Same Sex) Act 2013. That Act aimed to provide marriage equality for same sex couples in the ACT who were ineligible to marry under the Federal Marriage Act 1961. In October 2013 the Federal Government filed an application in the High Court of Australia challenging the validity of the State Act.

Historically the Federal Act has said 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.

On 12 December 2013 the High Court handed down its decision and found that the State Act cannot operate concurrently with the Federal Act given:-

• the Federal Parliament alone has power under the Constitution to legislate with respect to same sex marriage and under the Constitution and Federal law, whether same sex marriage should be provided for by law is a matter for the Federal Parliament; and

• the object of the State Act was to provide marriage equality for same sex couples and not for some other form of legally recognised relationship which is relevantly different from the relationship of marriage. Only Federal law can bring this about.

Therefore, the High Court found that the State Act has no effect.

Interestingly, Federal Attorney-General George Brandis has said:-

"The government believes it is important that we have uniform marriage laws across Australia."