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Commonwealth challenge to same-sex marriage laws hearing in High Court

The High Court could hear the Commonwealth's legal case against same-sex marriage before the first union takes place under the ACT's new laws.

The stoush over the ACT’s same-sex marriage laws, dubbed a ‘‘David and Goliath battle’’ by the territory, appeared in the High Court for the first time on Friday.

The Commonwealth, as expected, pushed for the hearing to be scheduled as soon as possible, arguing it should occur before the end of the year.

But the ACT Government said the proceedings should not be rushed in a way that would prejudice the parties.

High Court Chief Justice Robert French instead adjourned the directions hearing until early November, suggesting a hearing could be set down for the first week of December - or between Tuesday, December 3 and Friday, December 6.


It was suggested in court that the first marriages under the laws could take place from December 7. This would be the case if the ACT takes the full 10 days to gazette the law, meaning there is also a chance the law could take effect from the beginning of December if the legislation is processed quickly.

The High Court would not necessarily make a ruling at the conclusion of the hearing, and could reserve its judgement.

Justice French asked the ACT to file a defence by early November, with the court expected to sit again for directions on November 4.

The key constitutional issue is expected to be whether the ACT’s Marriage Equality Same-Sex Bill is inconsistent with the federal Marriage Act, which defines marriage as being between a man and a woman, or the Family Law Act, which deals with issues like divorce.

If the laws are inconsistent, they are likely to be deemed unconstitutional and declared invalid.

The Commonwealth launched its constitutional challenge on Wednesday, just one day after the bill was passed by the ACT Legislative Assembly.

The ACT is attempting to create a distinct and separate type of marriage, that can sit alongside the federal marriage laws.

Both Prime Minister Tony Abbott and Attorney-General George Brandis called on same-sex couples to hold off marrying until the High Court battle is resolved.

If the ACT’s laws were overturned, all same-sex marriages would be declared invalid, which Mr Brandis said would cause ‘‘distress’’ to some couples.

The ACT Government was forced to make last-minute changes to the laws on Tuesday to strengthen its chance of a win in the High Court.

Originally, the government had attempted to allow anyone who was not covered by federal laws to marry.

That was quickly changed after legal advice warned that approach could fail.

Instead, the ACT has sought to create a special form of same-sex marriage, which does not interfere with the Commonwealth’s laws.

Even more amendments could be made to the bill to bolster its chances of surviving the challenge.

The ACT Government is meeting key stakeholders and constitutional law experts on Monday to consider further changes.

The wording of the bill has prompted some criticism from same-sex campaigners, who fear that the ACT has rushed the legislation as a ‘‘protest’’, rather than a genuine attempt at achieving change.

They fear that if the ACT fails in the High Court, it could mean a major setback for the gay rights movement’s push for marriage equality.

But ACT Treasurer Andrew Barr told ABC Radio on Friday morning that, should it lose, the government could simply introduce a new bill, which may be based on the guidance from the High Court.

There were concerns the Commonwealth might have sought an injunction on Friday, which would have prevented couples from marrying until the High Court case was finalised. No such order was sought.

Other groups, including gay rights campaigners and opponents to same-sex marriage, did not seek to join the proceedings on Friday.

Those groups may still attempt to join the case as interested parties in the near future.