Commonwealth v Australian Capital Territory

Case [2013] HCA 55


HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ

THE COMMONWEALTH OF AUSTRALIA  PLAINTIFF

AND

THE AUSTRALIAN CAPITAL TERRITORY  DEFENDANT

The Commonwealth v Australian Capital Territory

[2013] HCA 55

12 December 2013

C13/2013

ORDER

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.

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…

Continue reading Commonwealth v Australian Capital Territory

Sign in free to access the full text

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)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.