The High Court has thrown out the Australian Capital Territory’s same-sex marriage law.
In a strikingly definitive decision, the Justices voted 6-0 to invalidate the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT). They said: “The whole of the ACT Act is of no effect.”
The court found that the whole of the ACT Act is inconsistent with the Commonwealth’s Marriage Act 1961 (Cth).
The court found that the Commonwealth has the power under Section 51(xxi) of the Constitution to define marriage. The Marriage Act (1961) was amended by the Howard government to define marriage as solely between a man and a woman. Today’s decision permits that definition to include same-sex couples.
Politically, the High Court’s decision upholds the Commonwealth’s power under Section 51. It denies states and territories the power to legislate for same-sex marriages but clears the way for the Commonwealth to do so. Whilst proponents of “marriage equality” may be disappointed with the decision, in fact it also removes a potential challenge to any future decision of the Commonwealth Parliament to legalise same-sex marriage. The next step lies in the hands of the government, the House of Representatives and the Senate.
Statement from the High Court of Australia.
THE COMMONWEALTH OF AUSTRALIA v THE AUSTRALIAN CAPITAL TERRITORY  HCA 55
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. [Read more...]