Why did the High Court strike down the ACT's same-sex marriage law?
The ACT Legislative Assembly passed the Marriage Equality (Same Sex) Act 2013 on October 22, making it the first Australian jurisdiction to legalize same-sex marriage. However, the Abbott government immediately…
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“Why did the High Court strike down the ACT's same-sex marriage law?” thisDay, thisday.info/history/marriage-equality-same-sex-act-2013/. Accessed 21 Oct. 2026.
Why did the High Court strike down the ACT's same-sex marriage law? (n.d.). thisDay. Retrieved October 21, 2026, from https://thisday.info/history/marriage-equality-same-sex-act-2013/
“Why did the High Court strike down the ACT's same-sex marriage law?” thisDay. Accessed October 21, 2026. https://thisday.info/history/marriage-equality-same-sex-act-2013/.
Expectation vs. Outcome
The ACT government intended to create a permanent legal framework for same-sex marriage, but the federal legal structure imposed strict limits on the territory's power.
| The plan needed | What happened | Why it mattered |
|---|---|---|
| The ACT would establish a permanent legal institution of same-sex marriage within its jurisdiction. | The High Court ruled the Act invalid because it conflicted with the federal Marriage Act. | The ruling clarified that only the federal Parliament could alter the national definition of marriage. |
| The law would remain in effect indefinitely, allowing continuous marriages under the new provisions. | The law was in operation for only one month before being struck down in its entirety. | The brief window allowed for the first same-sex weddings in Australia, but the legal basis was removed. |
| The High Court might rule that the ACT had the power to define marriage independently of federal law. | The court unanimously held the Act was of no effect due to inconsistency with federal law. | This confirmed the supremacy of the federal Marriage Act over state and territory legislation on this specific issue. |
The Legislative Path to Passage
The Marriage Equality Bill 2013 was introduced to the ACT Legislative Assembly on September 19, 2013, by Attorney-General Simon Corbell. The bill aimed to extend existing recognitions of same-sex unions, such as de facto partnerships and civil unions, into full marriage. Corbell argued in his introductory speech that everyone is entitled to equal protection under the law without discrimination. The ACT government later retitled the bill to the Marriage Equality (Same Sex) Bill to distinguish it from the federal definition of marriage. Proposed amendments that would have created a separate institution for same-sex couples were rejected by the government.
The bill faced a stark division within the Assembly. All eight members of the Labor Party, along with Greens MLA Shane Rattenbury, supported the legislation. In contrast, all eight members of the Liberal Opposition voted against it, arguing that the matter should be handled exclusively by the Federal Parliament. On October 22, 2013, the Assembly passed the bill by a vote of 9 to 8. This victory marked the first time any Australian state, territory, or federal legislature had passed legislation allowing same-sex marriage. The law was notified on November 4, 2013, and came into operation on November 7, 2013.
Federal Challenge and Legal Conflict
Upon the law's commencement, the Abbott government immediately challenged its legal and constitutional validity. The federal government lodged a challenge in the High Court of Australia, arguing that the ACT law conflicted with the federal Marriage Act. The federal Marriage Act defined marriage in Australia as the union of a man and a woman. The ACT government had not created a separate institution but rather sought to apply the existing legal framework of marriage to same-sex couples. This direct overlap created a constitutional tension between the territory's legislative power and the federal definition of marriage.
The High Court heard the case on December 3, 2013. The central legal question was whether the ACT had the power to legislate for marriage in a way that contradicted the federal statute. The federal government's position was that marriage was a subject of exclusive federal power, or at least that the federal law occupied the field. The ACT's law, by defining marriage to include same-sex couples, directly contradicted the federal definition. This conflict meant that the two laws could not coexist, forcing the court to determine which law held constitutional supremacy in this specific area.
The High Court Decision
On December 12, 2013, the High Court of Australia handed down its ruling. The basis for this decision was that the ACT law was inconsistent with the federal Marriage Act. Because the federal law defined marriage as the union of a man and a woman, the ACT law, which expanded this definition, could not stand. The court held that the ACT law was of no effect. This ruling effectively repealed the ACT legislation, not through an act of the Legislative Assembly, but through the judicial determination of its invalidity under the Constitution.
However, the ruling included a significant clarification regarding future legislative possibilities. The court expressly confirmed that the Parliament of Australia had the constitutional authority to amend the definition of marriage in the Marriage Act. This meant that while the ACT could not act independently, the federal government retained the power to change the law to allow same-sex couples to marry nationwide. The decision did not prohibit same-sex marriage in Australia, but it established that any such change had to come from the federal legislature, not from individual states or territories.
Immediate Aftermath and Legal Record
Despite the impending legal challenge, the ACT law was in operation for a brief period. The first same-sex couple to marry under the new laws was Alan Wright (Player) and Joel Player. Their wedding took place on December 7, 2013, five days before the High Court's ruling. This ceremony occurred while the law was still technically in force, although the outcome of the High Court case was pending. The existence of these marriages created a complex legal situation, as the law under which they were performed was subsequently declared invalid. The ACT government had to navigate the legal status of these unions in the aftermath of the ruling.
The legal record of the Marriage Equality (Same Sex) Act 2013 reflects its short life. The legislation register notes that the Act was notified on November 4, 2013, and came into effect on November 7, 2013. It was not expressly repealed by the Legislative Assembly. Instead, it was impliedly repealed because the High Court held it to be of no effect. The case is cited as Commonwealth v Australian Capital Territory [2013] HCA 55. This legal precedent clarified the boundaries of state and territory power regarding marriage, ensuring that any future changes to marriage law in Australia would originate from the federal Parliament.
Timeline: ACT Legislative Assembly passes Marriage Equality (Same Sex) Act 2013
- September 19, 2013 Bill introduced by Attorney-General Simon Corbell
- October 22, 2013 ACT Legislative Assembly passes the Act 9-8
- November 4, 2013 Act notified under the Legislation Act 2001
- November 7, 2013 Act comes into operation
- December 3, 2013 High Court hears the federal challenge
- December 7, 2013 First same-sex wedding under the Act
- December 12, 2013 High Court strikes down the Act
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Cite this page
“Why did the High Court strike down the ACT's same-sex marriage law?” thisDay, thisday.info/history/marriage-equality-same-sex-act-2013/. Accessed 21 Oct. 2026.
Why did the High Court strike down the ACT's same-sex marriage law? (n.d.). thisDay. Retrieved October 21, 2026, from https://thisday.info/history/marriage-equality-same-sex-act-2013/
“Why did the High Court strike down the ACT's same-sex marriage law?” thisDay. Accessed October 21, 2026. https://thisday.info/history/marriage-equality-same-sex-act-2013/.