On 12 December the Australian High Court (that jurisdiction’s highest court) ruled that the new Australian Capital Territory (ACT) legislation allowing for same sex marriage could not operate concurrently with the federal Marriage Act 1961, which applies across the whole Commonwealth of Australia. The ACT legislation allowed individuals to marry there regardless of where in Australia they were actually resident.
The court ruled that the parameters of marriage are a matter for the federal Parliament. A Bill allowing for same sex marriage had been rejected by the Federal Parliament in September 2012.
The High Court held that “marriage” as defined by the Constitution could include marriage between persons of the same sex. However, the federal Marriage Act giving effect to this precludes same-sex marriage. The object of the 2013 ACT legislation was to allow for same sex marriage in contradiction of the federal Marriage Act, and could therefore not operate concurrently with the federal legislation. The High Court ruled that the whole of the ACT legislation had no effect. The 2013 Act had come into force the weekend preceding the High Court decision. 27 couples were married under the Act. Their marriages are now deemed invalid.
Click here to read a press summary from the High Court about the case.
Click here to download other documents from the case, including the judgment and submissions.
Meanwhile, on 11 December the Indian Supreme Court reversed a High Court decision which had decriminalised homosexuality. S377 of the Penal Code, which dates from 1860, prohibits “carnal intercourse against the order of nature with any man, woman or animal”. In a landmark decision in 2009 the High Court found this law to be unconstitutional. The offence was punishable with up to 10 years imprison. Following the 2009 High Court decision, a coalition of largely religious groups appealed to the Supreme Court. The Supreme Court reversed the High Court’s decision ruling that only parliament could revise s 377 of the Penal Code.
Click here to read an article about the case.