Principal speaker
The Honourable Michael Kirby
The ACT Marriage Equality Case in the High Court: The Final Death of Originalism?
After the successful Irish Referendum in May 2015, the issue of same sex marriage in Australia is another story. In the Commonwealth v ACT (2013) 250 CLR 441 the High Court of Australia held that the ACT's Marriage Equality (Same-Sex) Act 2013 was constitutionally invalid and of no effect because the federal Marriage Act 1961 provided a comprehensive and exhaustive statement of the law with respect to marriage. It thus left no space, under the Australian Capital Territory (Self-Government) Act 1988, for the intrusion of a valid Territory law. The decision, reached unanimously and after reserving for only 10 days, disappointed proponents of marriage equality. But it also disappointed opponents because the court took the occasion to make it clear that the constitutional power with respect to marriage (s 51 (xxi)) extended to the enactment of a federal gay marriage statute. That conclusion could not be reached if the court had been of the view that the meaning of the Constitutional ’’marriage’’ power was confined to the understanding of ‘’marriage’’ in 1900. So, is this clear ruling by the High Court the final coup de grace to the originalist interpretation of the Australian Constitution? Was the ruling necessary? If so, is it to be welcomed?
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- Ms Carol Ballard
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