Myth 14: A Human Rights Act will mean that same sex marriage will be legalised.

The myth:  A Human Rights Act would force the Government to legalise same sex marriage.  This is a controversial issue which should be regulated by democratically elected Parliaments rather than unelected judges.

The reality: The federal Marriage Act defines "marriage" as a "union between a man and a woman". It is extremely unlikely that a court could use a Human Rights Act to interpret this definition as allowing for same-sex marriage (see myth 2 for an explanation of the proposed interpretation power).  Therefore, if a court found that the non-recognition of same-sex marriage was a breach of human rights, it could only issue a Declaration of Incompatibility.  No international human rights case has yet confirmed that there is a right to same sex marriage.  The UN Human Rights Committee found that there was no such right under the International Covenant on Civil and Political Rights in Joslin v New Zealand.  The right has, however, been recognised by the courts in some countries.

If a court declared that the prohibition on same-sex marriage breached human rights, it would be up to Parliament to decide whether or not to act upon that Declaration and pass a law allowing for same-sex marriage.