Attorney-General for the State of South Australia v Lord

The Attorney-General for the State of South Australia applied to the High Court of Australia to remove proceedings from the Supreme Court of South Australia. The dispute concerned the validity of section 73(3) of the South Australian Criminal Law Consolidation Act, which provided that a person is not presumed to have consented to sexual intercourse by reason only of being married to another person. The respondent argued that this provision was invalid due to inconsistency with federal legislation, specifically the Family Law Act and the Marriage Act.

The central legal issue before the High Court was whether section 73(3) of the Criminal Law Consolidation Act was invalid by reason of inconsistency with the Family Law Act or the Marriage Act, as contemplated by section 109 of the Australian Constitution. The respondent contended that these federal Acts covered the field of marital relationships and that the state legislation's removal of the common law presumption of marital consent to sexual intercourse was inconsistent with this federal legislative scheme.

The High Court considered the argument that the Family Law Act, by providing mechanisms for marital obligations and relief from them, occupied the field in relation to marital consent. The Court noted that the respondent's argument was that the state legislation, by providing an alternative means to remove the presumption of consent outside of the Family Court's jurisdiction, created an inconsistency. The application was brought under section 40 of the Judiciary Act 1903 to have this question of inconsistency resolved by the High Court.