On 12 December 2013 the High Court held that the Marriage Equality (Same Sex) Act 2013 (ACT) cannot operate concurrently with the federal Marriage Act 1961 (Cth). According to the judges, in a unanimous decision, 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, it is up to the Federal government to make laws covering same-sex marriage not states or territories.
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 1961 does not now provide for the formation or recognition of marriage between same-sex couples. The Marriage Act 1961 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 Commonwealth 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.
Source: Media release of the High Court of Australia, 12 December 2013
Decision: Commonwealth v Australian Capital Territory  HCA 55, 12 December 2013.
A number of same-sex couples married in the ACT during the week that this Act was in operation. These marriages are now invalid.
Media responses to this decision
- 'ACT law delivers neither marriage nor equality: the High Court's Verdict' by Anne Twomey, The Conversation, 12 December 2013
- 'Gay marriage is now only a matter of political will' by George Williams, SMH, 17 December 2013
- 'Australia revokes same-sex marriage rights' - video report, The Guardian Australia, 13 December 2013
Find out more
More information is available on our Research Guide Family: HSC Legal Studies on the following topics: