## Facts

- The Australian Capital Territory (ACT) enacted the Marriage Equality (Same Sex) Act 2013, providing for marriage between two people of the same sex in the Territory.
- The Commonwealth challenged the ACT enactment in the High Court’s original jurisdiction, arguing it was inconsistent with federal legislation in force in the Territory.
- The federal Marriage Act 1961 defined “marriage” as the union of a man and a woman and barred recognition of foreign same-sex marriages as marriages.
- The governing self-government framework provided that an ACT enactment has no effect to the extent of inconsistency with a federal law in force in the Territory, but is treated as consistent to the extent it can operate concurrently.
- An intervening organization supported the ACT and argued that the constitutional “marriage” power extends to same-sex marriage.

## Issues

1. Whether the constitutional power over “marriage” authorizes federal legislation providing for marriage between persons of the same sex.
2. Whether the ACT’s same-sex marriage law could operate concurrently with the federal Marriage Act, or was inconsistent and therefore of no effect under the Territory’s self-government statute.

## Decision

- The High Court held unanimously that “marriage” in the Constitution includes marriage between persons of the same sex.
- The Court held that the federal Marriage Act is a comprehensive and exhaustive statement of the law of marriage for Australia.
- The Court held that the ACT enactment could not operate concurrently with the federal Marriage Act and was inconsistent with it.
- The Court declared the whole ACT enactment to be of no effect, including ancillary provisions dealing with rights and dissolution.

## Legal Principles

- The constitutional head of power over “marriage” is not confined to the understanding of marriage at federation; it extends to a legally defined status whose incidents may change over time.
- A federal statute may “cover the field” by operating as a complete statement of the law governing a legal status; subnational laws creating the same status on different eligibility terms cannot operate concurrently.
- Under the ACT self-government scheme, an ACT enactment is invalid to the extent it is inconsistent with a federal law in force in the Territory; “concurrent operation” is the touchstone for consistency.
- Where invalidity affects the creation of the asserted status, dependent rights and dissolution provisions tied to that status also fail.

## Conclusion

The Court confirmed that federal constitutional power over marriage is broad enough to include same-sex marriage, but held that the ACT could not create a parallel marriage regime because the federal Marriage Act comprehensively regulated marriage and rendered the ACT enactment inoperative in full.


Commonwealth v. Australian Capital Territory, [2013] HCA 55 (Austl. 2013)