It was the law that could not be, born out of a the ACT’s push for equality. For five days in 2013, 27 same sex couples married under the looming shadow of annulment and ultimately led the push for marriage equality in Australia.
In 2013 the Australian Capital Territory passed the Marriage Equality (Same Sex) Act with the full knowledge that it was in contravention of the Marriage Amendment Act (2004). The case went before the High Court where it was struck down as inconsistent with Commonwealth legislation as per section 109 of the Commonwealth Constitution.
However, whilst the legislation was ultimately to be struck down, it provided the High Court with the opportunity to interpret the Commonwealth’s power under section 51 (xxi) of the Consitution. Section 51 (xxi) grants the Commonwealth with the power to legislate on marriage. The High Court interpreted the Commonwealth’s marriage power to be so broad as to not define the gender of those getting married, thus holding that hetrosexual, same sex and transgender couples could be legally married under the Australian Constitution.
However, the ultimate barrier to same sex marriage remained with the 2004 amendment to the marriage act inserting schedule 1 subsection 5(1) which stated that marriage was “between a man and a woman, to the exclusion of all others”. Therefore the High Court held that it was within parliament’s powers to legalise same sex marriage with a subsequent amendment to the Marriage Act.
Whilst it took another four years and a postal survey to invoke a change in the legislation, it was the ACT’s 2013 Marriage Act that bolstered conversation around the topic, and put the spotlight on the government to bring about marriage equality.