Wedding Crashers in Canberra?

Will the ACT’s new same-sex marriage legislation survive constitutional challenge?

The Australian Capital Territory made Australian history this week as the first Australian jurisdiction to provide for same-sex marriage. The ACT, Australia’s equivalent of the US District of Columbia, first announced plans to legislate on marriage equality in September, and the first marriages under the laws could take place later this year.

But there is a catch.

Australia’s national government, the Commonwealth of Australia, has today launched legal proceedings in the High Court of Australia challenging the ACT’s ability to legislate on marriage. Under the Australian constitution, the Commonwealth argues, national marriage legislation establishes a single and indivisible concept of marriage for the law of Australia, and the ACT cannot undermine that concept by providing for a new form of marriage. The new legislation, the Commonwealth argues, is inconsistent with the Commonwealth’s Marriage Act and other federal legislation.

The ACT has yet to respond formally to the Commonwealth’s writ. But based on past legal advice which it received with respect to a civil union law, the ACT can be expected to argue that there is no inconsistency here: the Commonwealth’s legislation regulates opposite-sex marriage, whereas the ACT’s law only applies to same-sex couples. As such, it could be said, there is simply no inconsistency.

The resolution of this litigation may well have consequences for how Australian law understands the concept of marriage, and for relationships between the Commonwealth and ACT governments. The result is difficult to predict. Depending on how the matter is resolved, the High Court’s ruling could also have implications for states, such as New South Wales and Tasmania, in which politicians are currently considering the possibility of marriage equality legislation.

Readers interested in the issues involved in this litigation can find, here, the Commonwealth’s argument, previous legal advice to the ACT, and recent legal advice to Tasmania.

The Commonwealth would like the High Court to hear its challenge before the end of 2013, with a preliminary ‘directions’ hearing to take place this week. It could be an eventful summer in Canberra.

Ryan Goss is Lecturer in Law at the Australian National University, Canberra.

4 Responses to Wedding Crashers in Canberra?

  1. Is the ACT proposing only to open single-sex marriage to those with a connection such as domicile or residence, or to all Aussies, or to anyone?

    If the latter, what will be the status of same-sex spouses married in ACT in the rest of Australia? Are they trying to do a Canada?

    I will not disguise my views that any country which allows same-sex marriages to people who are not its domiciliaries and its citizens ought to tell them, in polite but plain terms – and in writing – that the marriage may not be recognised where they are domiciled or are citizens – and make them sign a copy of the warning. The ACT cannot make a law to bind the whole world.

    Andrew 24 October 2013 at 9:00 pm Reply
  2. Pingback: Oxford Human Rights Hub | Australian judge lays down gauntlet for proponents of human rights instruments

  3. Pingback: Oxford Human Rights Hub | The Commonwealth v The Australian Capital Territory: Marriage Equality in the High Court

  4. Pingback: Oxford Human Rights Hub | Over to you, Parliament – The significance of the Australian High Court’s judgment on same-sex marriage

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