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Same-sex marriage law High Court challenge confirmed

Federal Liberal senator and Attorney-General George Brandis.

Federal Liberal senator and Attorney-General George Brandis. Photo: Andrew Meares

The ACT government has vowed to fight an Abbott government challenge in the High Court to the territory's same-sex marriage laws.

I’m not surprised but I’m disappointed that there is a failure to acknowledge that this fundamental matter of inequality needs to be addressed. 

ACT Attorney-General Simon Corbell

Attorney-General Simon Corbell said on Thursday the government believed its laws were valid and ''attempts to stymie, block or prevent reform will only lead to an even greater impetus for it''.

ACT Attorney-General Simon Corbell.

ACT Attorney-General Simon Corbell.

The federal government will challenge the ACT's same-sex marriage laws in the High Court as soon as they are passed.

Attorney-General George Brandis described the territory laws on Thursday as ''a threat'' to the ''well-established position'' that marriage laws should be nationally consistent and were the domain of the Commonwealth.

Senator Brandis informed the ACT government of the legal challenge in a phone call on Wednesday night before confirming the move at a meeting of state and territory attorneys-general on Thursday.

The ACT government says it will ''robustly defend'' its laws, which are expected to pass at the October sitting of the ACT Legislative Assembly with the support of all eight Labor MLAs and Greens MLA Shane Rattenbury.

The federal government will ask for an expedited High Court hearing and has called on the ACT government not to pass its laws until their constitutional validity is tested. Chief Minister Katy Gallagher said on Twitter that the ACT government had declined that request.

''It would be very distressing to individuals who may enter into a ceremony of marriage under the new ACT law, and to their families, to find that their marriages were invalid,'' Senator Brandis said.

He said the advice of the acting federal Solicitor-General was that the ACT's marriage equality bill was invalid because it was inconsistent with the Commonwealth Marriage Act.

''Irrespective of anyone's views on the desirability or otherwise of same-sex marriage, it is clearly in Australia's interests that there be nationally consistent marriage laws,'' he said.

''At the moment, the Commonwealth Marriage Act provides that consistency. The ACT's proposed law is a threat to that well-established position. It has been understood for more than half a century that there is a single Commonwealth law governing marriage in Australia. The Abbott government believes that that should continue to be the case.''

Mr Corbell said on Thursday: ''I'm not surprised but I'm disappointed that there is a failure to acknowledge that this fundamental matter of inequality needs to be addressed.

''Attempts to stymie, block or prevent reform will only lead to an even greater impetus for it,'' he said.

Mr Corbell said there ''are still battles to be fought'' and reiterated the ACT government's intention to ''robustly defend our law in the court''. ''The Commonwealth have confirmed … that they will be commencing legal proceedings in the High Court once our laws become operational,'' Mr Corbell said. ''They argue it's inconsistent. I indicated the territory's view, legal advice and the advice of other constitutional law

experts differed from that and we will be robustly defend our law in the court.''

Mr Corbell said Coalition-aligned state and territory governments had indicated they would support the federal position.

He said that included NSW, whose same-sex marriage bill served as the basis for the territory's legislation.

Mr Corbell said the federal government would assert that its view of marriage covers all aspects of that matter and that it was not open to states and territories to legislate for same-sex marriage. ''We assert that our bill is capable of concurrent operation and is therefore not inconsistent.''

A Tasmanian Institute of Law Reform report on same-sex marriage, published on Thursday, concluded there was ''no legal impediment to states enacting marriage laws'' because marriage powers were shared by the states and the federal government.

The report said it was uncertain whether a High Court challenge to same-sex marriage laws would succeed.

The report's author, Amelia Higgs, said the study ''clearly dispelled the idea that the states can't do this''.

She said the outcome of a High Court challenge would come down to whether or not ''the states can enact a marriage power that doesn't clash with the Commonwealth''.

''I think what some people don't realise, or conveniently forget, is that opposite-sex marriage used to be regulated by the states,'' Miss Higgs said. ''It wouldn't be an unusual thing for the states to be the ones to get the ball rolling [for same-sex marriage]''.

Mr Corbell said the report showed that the validity of the ACT laws was ''a contested and open question''.

''There is just as much prospect that our law will be found to be valid as there is that it will be found to be invalid,'' he said.

''No one can be certain what the High Court will decide.''

 

186 comments

  • How about a quote from his sister after her assurances that Tony is not a homophobic bigot, or was that just a pack of lies to help get him elected ?? Please explain.

    Commenter
    Tazzie
    Location
    Huon Valley
    Date and time
    October 10, 2013, 11:33PM
    • Tazzie, there are more important things that matter for the country than whether your sister likes sleeping with other women. Tony Abbott was elected fair and square, and it is about time you got used to it. The ACT supersized nanny council is a national joke, and WE'RE ALL STUCK WITH IT

      Commenter
      STOP gay marriage
      Location
      Canberra, Australian Communist Territory
      Date and time
      October 11, 2013, 1:32AM
    • The good ship Australia has been turned 180 degrees, and is now sailing headlong towards the 1950s.

      Blocking gay marriage will end in failure. Climate change denial will end in failure. Ignoring
      anger over MP expenses will end in failure. The Abbott government is a failure.

      As someone said here recently, turn back the votes!

      Commenter
      Sue Positry
      Location
      Windsor
      Date and time
      October 11, 2013, 3:02AM
    • Aren't there more important things for the ACT government (in fact every Australian government) to worry about than same sex marriage? I am neither religious nor homophobic, but now gay couples have all the rights of straight de-facto couples, enough is enough. Marriage is for a man and a woman, OK??? Get on with your lives and focus on important stuff, like youth unemployment, infrastructure, foreign ownership of our assets.......10 per cent of the population may be gay, but that leaves the small matter of the other 90 per cent: accept the difference and move on!

      Commenter
      stuk
      Date and time
      October 11, 2013, 7:40AM
    • That was just one of the lies in Abbott's pack to get him elected.

      Commenter
      Sharron
      Location
      Canberra
      Date and time
      October 11, 2013, 10:02AM
    • @ Stop Gay Marriage: the ACT Legislative Assembly was elected just as legitimately as the federal government.

      If you don't like living in the ACT, then please consider Russia, or one of the USA Tea Party states, where the political climate would seem to be more aligned to your opinions.

      Commenter
      Robert
      Location
      Canberra
      Date and time
      October 11, 2013, 10:52AM
    • Sharron,

      Abbott always said he was against gay marriage to say other wise is just dishonest.

      Commenter
      Don't care
      Date and time
      October 11, 2013, 1:13PM
    • @stuk

      Yea, and less than 10% of the population is asian, and only 2% of the population are Indigenous Australians. let's take away their marriage rights to. Dw, they are minorities, so it's not a real issue anyway.

      Commenter
      LGrif
      Date and time
      October 11, 2013, 1:53PM
    • stuk, your comments are wholly homophobic and bigotted. As a gay man I will not move on. I have every right as a free citizen to pursue this issue and do not need to defer to you for permission. You have no right to tell me to move on and I have no doubt you would not like the same thing being done to you.
      Any reasonably intelligent person understands that marriage equality hurts no-one and at the end of the day who marries whom is none of your business. Why do you even care?

      Commenter
      eyeroll
      Location
      Sydney
      Date and time
      October 11, 2013, 2:08PM
    • Great usage of ACT tax payer $$ fighting the fed government on something that only affects what 1% of the population.
      But the ACT government sack Police, close respite care, and so on. How about some representative government
      Only winners will be the lawyers, again.

      Commenter
      Cash
      Date and time
      October 11, 2013, 2:11PM

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