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Gay marriage: ACT law seeks to fill gap in federal law

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Professor of Law at the University of NSW

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High Court awaits same-sex marriage legislation

According to constitutional law expert Professor George Williams, the legal challenge to the ACT marriage equality legislation will be a question of federalism not human rights.

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The ACT is set to pass Australia's first same-sex marriage law. Its Marriage Equality Bill will be debated on Tuesday, and a Labor-Greens majority in the ACT Legislative Assembly means it is certain to pass.

The celebrations will be cut short though by a federal constitutional challenge. Attorney-General George Brandis may even seek a High Court injunction to prevent the law coming into operation. This would frustrate the hope that same-sex couples from around Australia could come to Canberra to be married before Christmas.

The federal and ACT governments are expressing confidence that the High Court will decide their way. Both cannot be right, but such optimism is not surprising. People rarely go into High Court litigation playing down their chances, and on this occasion good arguments can be put either way.

Engaged: Tony Abbott's sister Christine Forster and her partner Virginia Edwards.

Engaged: Tony Abbott's sister Christine Forster and her partner Virginia Edwards. Photo: Janie Barrett

Same-sex marriage has often been litigated in other countries. Last year, the US Court of Appeals found a Californian ban on same-sex marriage was unconstitutional under the US Bill of Rights. It said the ban ''serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples''.

Such arguments will not be raised in the High Court. Australia is alone among democratic countries in not having a bill of rights, and so the focus will instead be on federalism.

Marriage is a shared responsibility between the federal government and the states and territories. All existing marriage laws are federal laws, but this has not always been the case. Up until 1961, there were no federal marriage laws, and the area was the sole domain of the states.

The states and territories can enact a same-sex marriage law. The constitutional question is whether such a law is inconsistent with the federal Marriage Act.

A system that provides for shared responsibility needs a way to resolve conflicts and disagreements. This is set out in section 109 of the constitution, which says that in the event of inconsistency between a state and federal law, ''the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid''.

This section does not apply to the territories, but a like provision was imposed on the ACT when it gained self-government in 1988. The wording of its clause is narrower than section 109. This gives rise to an argument that inconsistency is less likely to arise between a federal and territory law, as opposed to between a federal and state law.

The ACT's argument in the High Court will rest upon this distinction, and the hope that the High Court will take a more lenient approach to its laws. It has a strong starting point, but has adopted a risky path when it comes to the drafting of its bill.

The ACT Marriage Equality Bill permits any two people to marry who cannot now do so under federal law. It fills in the gaps not covered by federal marriage law, and so will authorise not only same-sex people to marry but also transgender and intersex people.

The same-sex marriage bills drafted in Tasmania and NSW adopt a more cautious approach. They are less broad in only applying to same-sex couples. Rather than seeking to fill in the gaps left by federal law, they create a new type of same-sex marriage under state law.

The distinction between the ACT and state bills may seem slight, but it could prove significant in the High Court. Constitutional cases routinely turn on points as fine as this.

The state approach was examined in an advice released last Friday by leading barrister Bret Walker, SC, and other members of the bar. They concluded the states would avoid inconsistency with the federal Marriage Act.

By contrast, the ACT law could be struck down because of its broader approach. Fortunately, the ACT government has now recognised this. It announced on Monday it will amend its bill in the Legislative Assembly on Tuesday. This needs to bring the bill into line with the more cautious state drafting. Such a pragmatic approach would improve its chances in the High Court.

If the ACT law is upheld, the door will open for like laws around the nation. If it is struck down, some of the considerable momentum built up by same-sex marriage campaigners will be blunted.

A High Court loss will not end the debate about state same-sex marriage laws, but it will make it more difficult to convince state parliamentarians to also make the attempt. This will be so even though a state law might survive where a territory law is struck down, due to uncertainty about the reach of the federal marriage power in the states. In these circumstances, there would be a renewed focus on the prospects of change at the federal level.

George Williams is the Anthony Mason professor of law at the University of NSW.

48 comments

  • The Marriage Equality Bill of the ACT is but another step in the evolution of society - in this case the legal concept of marriage.
    The correct concept of marriage is owned by no-one. The High Court may revoke the ACT legislation - but it won't stop there. How can this particular aspect of society stand still - when every other dimension of our life is changing.
    There is - and forever will be - a constant tension in society regarding the direction we should take (or not take); the various forces at work have no claim to being the keeper of the 'truth'. Any assertion that a particular God is on their side deserves no more merit than any other position.
    I wish them well - a wet sail, and God speed.

    Commenter
    Howe Synnott
    Location
    sydney
    Date and time
    October 22, 2013, 6:09AM
    • Calling it a "marriage equality" bill is itself dishonest and question-begging.

      Those who say that Christians should not try to influence government policy is interesting. If Wilberforce and Shaftsbury had believed that we would have had slavery and child labour for much longer in Britain and the then Empire.

      Suggesting that Christians regard a marriage registered in as church as somehow different from one started in a registry office is wrong. Christians regard all marriages as "civil unions" but we prefer to have a church ceremony to remind us of God's requirements for marriage, for appropriate prayer and so on. The wisdom of the ages has meant that most people of all religions and none, and many homosexual people, have understood marriage to involve a man and a woman. A few have practised polygamy, but it has still been a heterosexual matter.

      If state and territory parliaments want to behave like spoilt children and destroy the uniformity of our marriage laws I look forward to the re-introduction of state income tax, state company law, a return to different road rules and a general thumbing of noses at the Federal Parliament.

      Commenter
      David Morrison
      Location
      Blue Mountains
      Date and time
      October 22, 2013, 8:21AM
    • @ Howe Synnott,

      This concept that no one owns the definition of marriage and that homosexual marriage is some kind of evolution, is ridiculous! Society has been built from mums and dads having children, when has someone been born from a dad's womb and how is having 2 homosexual parents some form of evolution.

      If there is anyone who would prefer 2 dads over a mum and dad, I highly doubt it!

      Commenter
      Jack
      Date and time
      October 22, 2013, 9:22AM
    • Poor miserable Davo Morrisson. Still stuck in the past with his little book of story tales.

      Meanwhile in reality, people are moving on and being happy.

      Commenter
      polly hannah
      Date and time
      October 22, 2013, 9:23AM
    • @David Morrison

      Calling "marriage equality" dishonest is dishonest.

      And so is your point about slavery and child labour... Nobody has said that Christians shouldn't influence government policy, but rather that Government policy shouldn't be formed with respect to "God's requirements". There are sound arguments against slavery and child labour and beyond appeals to superstition. That they happen to coincide with your religious beliefs in this instance is immaterial.

      Most people understand marriage NOT to involve "God's requirements", so by your own argument it is really Christians who ought to be forbidden to marry, given that such a definition is at odds with what marriage is commonly "understood to involve".

      And finally, it is your mob who behave "like spoilt children", selfishly withholding from others that which you take for granted yourself, and which, if shared, would cost you nothing.

      You may impress yourself, but this attempt to whitewash what's really just your own prejudice falls flat.

      Commenter
      Frank Earnest
      Date and time
      October 22, 2013, 9:28AM
    • David Morrison, there are already different road rules - for instance p platers in the ACT have different speed limits from p platers in NSW. I am a bit sick of Christians claiming the ending of slavery and child labour. You forget to mention that it was also Christians supporting the retention of slavery and child labour.

      Commenter
      Novas
      Location
      Canberra
      Date and time
      October 22, 2013, 9:33AM
    • Thank you David - I respect your comments, and civility.
      Changes in society are not uniform - inevitably occurring at a different pace in different places. What happens in the ACT is nothing more than another step - in one place. Evolution is like that; it doesn't happen everywhere at the same time, or in the same way. What happens in the ACT may lead to changes in other states - and federally, too; hardly surprising or peculiar.
      Our attitudes evolve with time and increasing knowledge - shaped by our life experiences, and so it should be. This is what will happen regarding the broader society view on marriage.

      Commenter
      Howe Synnott
      Location
      Sydney
      Date and time
      October 22, 2013, 9:52AM
    • @David Of course Christians can participate in any discussion, but any argument that invokes your God is invalid. Your God's supposed will has no relevance to the making of our laws.

      Commenter
      Chen
      Location
      Canberra
      Date and time
      October 22, 2013, 10:51AM
    • David, I challenge you to find a bit in the Bible that says that a marriage is exclusively between a male and female and for life. There are a lot of models given, none of which match what we have legislated as 'marriage':

      -Abraham marries his half-sister (or his niece) - illegal in Australia
      -Onan forced to marry his brother's widow - illegal in Australia
      -Polygamy as practiced by David and Solomon - illegal in Australia
      -Rape victim forced to marry rapist after a fine is paid - illegal in Australia
      -Slaves forced to marry by owners - illegal in Australia
      -Underage girls taken as war-prizes forced to 'marry' their captors - illegal in Australia
      -Paul's advice that marriage is better than fornication* and burning in hell forever - not illegal, but pretty stupid

      *which could also lead to dancing

      Commenter
      Caffetierra Moka
      Location
      Sector 7-G
      Date and time
      October 22, 2013, 10:54AM
    • @ Howe Synnott and Frank Earnest,

      Marriage equality is dishonest, because it is defining heterosexual unions to be the same as homosexual unions, like saying man is the same as a woman when they are clearly Not!...there are clear psychological, social and biological differences between sexes.

      How can it be some form of evolution? Babies being produced in test tubes, not knowing the maternal love of a mother or daughters not having that special bond with their dads, because they have 2 mums. It is common sense that the definition should not be changed.

      The federal government has been elected, the people have spoken, a union between two people of the same sex should be defined under a civil union. Why does the homosexual lobby not accept a civil union definition?

      Commenter
      Frank
      Date and time
      October 22, 2013, 1:08PM

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