High Court strikes down Australian Capital Territory same-sex marriage law

Saturday, December 14, 2013

On Thursday the High Court of Australia struck down the Australian Capital Territory (ACT) same-sex marriage legislation.

High Court building in Canberra
Image: John Conway.
ACT Chief Minister Katy Gallagher
Image: ACT Government.
Prime Minister Tony Abbott
Image: MystifyMe Concert Photography (Troy).

In a landmark decision, the High Court unanimously ruled the term "marriage" in Section 51(xxi) of the Constitution of Australia did indeed include marriages between people of the same sex. However, the Commonwealth Marriage Act 1961 does not permit or recognise same-sex marriages.

Section 109 of the Constitution says when a law is inconsistent with a law of the Commonwealth, the latter prevails. The High Court therefore struck down the ACT legislation in its entirety, ruling it was wholly inconsistent with the Commonwealth law.

Some 31 same-sex couples were married under the law in the five days from when it became effective last Saturday, December 7, and when the High Court struck it down on Thursday. Their marriages are now invalid. Prime Minister Tony Abbott said they knew this was a possibility.

The ACT Legislative Assembly legalised same-sex marriages in October. The Commonwealth Government challenged the law in the High Court promptly once passed.

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