Advocates of marriage equality laws in NSW remain confident of success despite an announcement by the federal government that it would challenge in the High Court similar laws in the ACT.
Federal Attorney-General George Brandis described the laws – which are expected to pass the ACT assembly – as ”a threat” to the ”well-established position” that marriage laws are a Commonwealth matter. He called on the ACT government not to proceed with the laws until their constitutional validity was determined.
The federal government believes the state-based law would be inconsistent with the Federal Marriage Act, which defines marriage as between a man and a woman.
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”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.
NSW Premier Barry O’Farrell has voiced his personal support for same-sex marriage but his preference is for it to be legislated by the Federal Parliament.
In July a NSW upper house inquiry found that NSW has the power to introduce its own law, although this was likely to be challenged in the High Court by opponents of gay marriage. A group of Liberal, National, Labor and independent MPs has drafted a same-sex marriage bill for introduction to the NSW Parliament.
One of the group, Labor MP Penny Sharpe, said on Thursday it remains confident its law can withstand any High Court challenge by the federal government.
”The constitutional issues are different between the Commonwealth and territories and the Commonwealth and the states,” she said. ”We believe our bill is constitutionally valid and will withstand any challenge. We’re going to continue to push forward.”
Independent MP Alex Greenwich said the reform was ”really important to families, couples and communities in NSW. We will be progressing this reform confidently”. Mr O’Farrell and Labor leader John Robertson have both promised their MPs a conscience vote on the matter.
However, there are questions over whether the bill will pass the lower house.
Anne Twomey, an associate professor with the law school at the University of Sydney, has previously said NSW had the power to legalise same-sex marriage but raised the possibility that state laws would conflict with the Federal Marriage Act.
She said a significant potential problem would be how state law connected with federal laws such as those dealing with de facto relationships, which dictated property rights if a couple broke up.
Photo: Sean Nicholls
Publication: Sydney Morning Hearld
Author: Sean Nicholls
Date: 11 October 2013