The Australian Capital Territory (ACT) has become the first state or territory in Australia to pass a bill legalising same sex marriage in Australia. The Marriage Equality (Same-Sex) Bill was passed by the ACT's Legislative Assembly on 22 October 2013, with a majority of only one vote.
However, the ACT Government will now face the inevitable battle with the Federal Attorney-General, who has indicated that he intends to challenge the ACT's legislation in the High Court. Accordingly, the proposed new laws may be short-lived if the Commonwealth is successful in its argument that the terms of the legislation are inconsistent with the Marriage Act 1961 (Cth). The Marriage Act 1961 defines marriage as between a man and a woman only, raising the prospect that any legislative provisions to the contrary in the ACT legislation could be regarded as inconsistent with the terms of the federal legislation and therefore invalid to the extent of the inconsistency.
It the Act does survive the anticipated High Court challenge, the ACT same sex marriage legislation will apply to any same sex couples who marry in the ACT, regardless of where they reside in Australia. On that basis, provided they are prepared to wed in the ACT, same sex couples from anywhere in Australia could marry provided they are prepared to do so in the ACT.
At a Federal level, it would appear unlikely we can expect any changes to the Marriage Act to provide for same sex marriage in the near future however NSW has announced that it proposes to introduce same sex marriage legislation for consideration before its State Parliament.
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