Essentially, the questions for the Court to determine are:
- is the ACT legislation inconsistent with the Commonwealth Marriage Act and/or the Commonwealth Family Law Act? and
- if the ACT Legislation is inconsistent, does that cause the ACT Legislation to be of no effect or void?
Both the Commonwealth and the ACT have filed written submissions in this matter, as have "Australian Marriage Equality Inc" (see here).
Brief Summary of the arguments:
The case for the Commonwealth is that:
"It has always been within the power of the Commonwealth to exercise that power to legislate to declare a single and uniform rule for Australian society as to what constitutes a valid marriage."
They argue that the Marriage Act:
"leaves no room for there to be any other laws in Australia which purport to clothe a union with the legal status of marriage (or a form of marriage)"
On that basis, the Commonwealth seek a declaration that the ACT Marriage Act is of no effect.
The ACT however submits that
"It is not accepted that the Marriage Act coupled with the Family Law Act, provides a uniform set of rules for the holding of the status of marriage for the law of Australia."
and that:
"The Commonwealth fails to demonstrate that the ACT law destroys or detracts from a right conferred by the Commonwealth Law."
For their part, Australian Marriage Equality Inc submits:
"leaves no room for there to be any other laws in Australia which purport to clothe a union with the legal status of marriage (or a form of marriage)"
On that basis, the Commonwealth seek a declaration that the ACT Marriage Act is of no effect.
The ACT however submits that
"It is not accepted that the Marriage Act coupled with the Family Law Act, provides a uniform set of rules for the holding of the status of marriage for the law of Australia."
and that:
"The Commonwealth fails to demonstrate that the ACT law destroys or detracts from a right conferred by the Commonwealth Law."
For their part, Australian Marriage Equality Inc submits:
"The critical question in the present case is therefore whether the ACT Act is to be construed as an inconsistent attempt to regulate attainment of the status of marriage which is regulated by the Marriage Act. It is not. The ACT Act attributes a character or status to relevant same-sex couples, being a type of status which was never regulated (and is now expressly self-limited) by the Commonwealth in the Marriage Act."
For more information visit www.fgd.com.au
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