7.In light of the answers to the preceding questions what, if any, orders should be made for the final disposition of these proceedings?
Answer:There should be judgment for the plaintiff for a declaration that the whole of the Marriage Equality (Same Sex) Act2013 (ACT) is inconsistent with the Marriage Act 1961 (Cth) and of no effect.
8.What orders should be made in relation to costs of the questions reserved and of the proceedings generally?
Answer:The defendant should pay the plaintiff's costs of the questions reserved and of the proceedings generally.
Representation
J T Gleeson SC, Solicitor-General of the Commonwealth with M P Kearney SC, G A Hill and C L Lenehan for the plaintiff (instructed by Australian Government Solicitor)
P J F Garrisson SC, Solicitor-General for the Australian Capital Territory and K L Eastman SC with H Younan for the defendant (instructed by ACT Government Solicitor)
J K Kirk SC for Australian Marriage Equality Inc, as amicus curiae (instructed by Human Rights Law Centre)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commonwealth v Australian Capital Territory [2013] HCA 55
Case
[2013] HCA 55
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between the Commonwealth of Australia and the Australian Capital Territory concerning the validity of the *Marriage Equality (Same Sex) Act 2013* (ACT). The Commonwealth challenged the ACT legislation, which provided for marriage between two people of the same sex, on the grounds of inconsistency with Commonwealth law.
The central legal issues before the Court were whether the ACT Act was inconsistent with the *Marriage Act 1961* (Cth) within the meaning of section 28(1) of the *Australian Capital Territory (Self-Government) Act 1988* (Cth), and whether it was repugnant to the Commonwealth Act. The Court was also asked to determine the extent to which the ACT Act would be of no effect or void if found to be inconsistent or repugnant.
The Court reasoned that the *Marriage Act 1961* (Cth) defined marriage exclusively as the union of a man and a woman. This definition, enacted pursuant to the Commonwealth Parliament's constitutional power under section 51(xxi) of the Constitution, established a uniform national law on marriage. The *Marriage Equality (Same Sex) Act 2013* (ACT), by providing for same-sex marriage, created a legislative scheme that was incapable of operating concurrently with the Commonwealth Act. Consequently, the ACT Act was found to be inconsistent with the *Marriage Act 1961* (Cth) under section 28(1) of the *Australian Capital Territory (Self-Government) Act 1988* (Cth).
The Court declared that the whole of the *Marriage Equality (Same Sex) Act 2013* (ACT) was inconsistent with the *Marriage Act 1961* (Cth) and therefore of no effect. The Australian Capital Territory was ordered to pay the Commonwealth's costs.
Orders
Orders of the court
The questions reserved for determination by the Full Court on 4 November 2013 be answered as follows:
1. Is the Marriage Equality (Same Sex) Act 2013 (ACT), in part or in its entirety:
(a) inconsistent with the Marriage Act 1961 (Cth) within the meaning of s 28(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth); and/or
(b) repugnant to the Marriage Act 1961 (Cth)?
Answer: The whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is inconsistent with the Marriage Act 1961 (Cth).
2. If the answer to question 1(a) is "yes", to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) of no effect?
Answer: The whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is of no effect.
3. If the answer to question 1(b) is "yes", to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) void?
Answer: This question need not be answered.
4. Is the Marriage Equality (Same Sex) Act 2013 (ACT), in part or in its entirety:
(a) inconsistent with the Family Law Act 1975 (Cth) within the meaning of s 28(1) of the Australian Capital Territory (Self-Government) Act 1988 (Cth); and/or
(b) repugnant to the Family Law Act 1975 (Cth)?
Answer: This question need not be answered.
5. If the answer to question 4(a) is "yes", to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) of no effect?
Answer: This question need not be answered.
6. If the answer to question 4(b) is "yes", to what extent, if any, is the Marriage Equality (Same Sex) Act 2013 (ACT) void?
Answer: This question need not be answered.
7. In light of the answers to the preceding questions what, if any, orders should be made for the final disposition of these proceedings?
Answer: There should be judgment for the plaintiff for a declaration that the whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is inconsistent with the Marriage Act 1961 (Cth) and of no effect.
8. What orders should be made in relation to costs of the questions reserved and of the proceedings generally?
Answer: The defendant should pay the plaintiff's costs of the questions reserved and of the proceedings generally.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ
(dissent)