It would have been almost impossible for the High Court to allow the same-sex marriage law to remain. Under the Constitution, the Federal Government has the power to legislate for marriage under s 51(xxi) (which they have, determining that it’s between a man and a woman following Howard’s changes to the Marriage Act), and the States have only a residual power. Since the Federal Government has “covered the field”, inconsistent State laws (like the ACT Act allowing marriage between a same sex couples) are struck out to the extent of the inconsistency under s 109. The High Court’s hands were tied - and rightly so, because it shouldn’t be permissible for 7 unelected people to determine the law on the basis of their personal beliefs (begin arguments about the Mabo decision now). And while people have been saying the Federal Government should not have pursued the case to strike out the legislation, it would set a dangerous (and confusing) precedent to allow inconsistent State laws to coexist with Federal legislation. Ultimately, then, the High Court made the right legal decision and it is a matter for the Federal Government to amend the Marriage Act.
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Been on that here in Australia - called “The Colour Run”.
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