Two Couples Celebrate the first same-sex marriages in New Zealand earlier this year.
The A.C.T. has passed Australia’s first same-sex marriage laws. The legislation’s wording was changed in recent days to improve its chance of surviving a Federal Government challenge. However, as James Bourne writes, one legal expert believes more could have been done.
Today, the Australian Capital Territory’s Marriage Equality Same-Sex Bill was passed in Canberra, making the ACT the first juristiction in the country to recognise same-sex marriage.
The A.C.T’s Labor government made last-minute arrangements based on legal advice to ensure the safe passage of the bill, which was passed into law by the ALP with support from Greens member Shane Rattenbury.
However, the legislation may be placed in limbo by an appeal to the High Court from the Federal Government.
What that does illustrate is that the move here at the state and territory level will not get us to marriage equality. It’s a big step towards it.
Jeremy Hanson, the leader of the Liberal Party in the ACT legislative assembly, has publicly acknowledged the a range of views within the Coalition about on same-sex marriage, but has refused to allow a conscience vote on the issue.
‘There area a range of views within our party just as there a range of views within the community,’ Mr Hanson said.
‘There is a consistent and unanimous view that this is a federal issue. This isn’t something that we should be debating in the ACT Legislative Assembly.’
Professor George Williams, a constitutional law expert at the University of New South Wales, advised legislators in the territory to change the wording of the bill to withstand any challenge from the Commonwealth.
He told RN Breakfast that while he expects the law has a reasonable prospect of surviving a constitutional challenge, more could be done to mitigate the risk.
‘The amendments they’ve proposed I think are good,’ Mr Williams told Breakfast.
‘They’ve essentially made a judgement call… they think they’ve done enough.
‘I personally hope they’re right, but certainly from my point of view I would have liked to have seen them do a little bit more to maximise the chances of success.’
The bill was renamed in recent days, with the original title, the ‘Marriage Equality Bill’, changed to the ‘Marriage Equality Same-Sex Bill’.
Mr Williams’ advice relied on the assumption that the High Court would find the Federal Marriage Act applies only to heterosexual couples, meaning the ACT marriage laws should seek to cover only same-sex marriages.
‘It’s a technical legal change,’ Mr Williams said.
‘The original approach in the A.C.T. bill was essentially to allow people to marry who just aren’t covered by federal laws. You need to do it separately, independently, and as a result you need to set up your own special form of same-sex marriage.
‘We know the A.C.T. has the power to do this. In a federation, the states and the territories as well as the Commonwealth can pass laws on this, so it’s a shared responsibility. The only question is one of inconsistency.’
However, A.C.T. Liberal Party leader Jeremy Hanson told RN that he believed the laws would be found by the High Court to be constitutionally invalid.
‘It’s pretty clear that the Federal Marriage Act encompasses marriage in its entirety,’ he said.
‘Section 109 of the Constitution makes it clear that if a state passes a law that is inconsistent with that Commonwealth law it will be found invalid.’
Mr Hanson called the bill ‘policy on the run’, and was critical of Labor and the Greens in the ACT for attempting to drive the national agenda on social issues. Former Liberal Chief Minister of the ACT, Kate Carnell, has been critical of the Coalition Government’s decision to intervene, and defended the right of territories to legislate for their constituents, but Mr Hanson is backing his federal counterparts.
‘I think that the Federal Attorney General’s obligated to make sure that the laws that are passed in the states and territories are actually lawful,’ Mr Hanson told Breakfast.
‘I really don’t think it’s appropriate for a majority of one person in the ACT to essentially be changing what I very much view as a federal issue. I think that regardless of the legal issues, I think that it’s a problem if we’ve got inconsistent marriage laws.’
Mr Williams said there was a chance the High Court will prevent couples from marrying until the expected federal challenge to the law is completed.
‘I think there’s a real chance the High Court will give an injunction meaning that people won’t get to marry before the bill is challenged,’ he said.
‘If the bill is found to be inoperative then those marriages would also be inoperative, and obviously that would be a significant social cost.’
If the High Court allows the territory’s legislation to stand, Mr Williams believes that a concerted effort from all states and territories is required to ensure laws are carried nationally.
‘It would certainly not be recognised out of the ACT and that’s because it would require legislation in other jurisdictions to give that recognition,’ he said.
‘You’d have to have an A.C.T. marriage, and it’s a bit like what’s happened for a long time in the United States where you’ve got state-based same-sex marriages.
‘What that does illustrate is that the move here at the state and territory level will not get us to marriage equality. It’s a big step towards it, but ultimately you do need either all of the states and territories legislating for mutual recognition or a national law to bring full marriage equality about.’
Photo: Marty Melville/AFP/Getty Images
Author: James Bourne
Publication: ABC RN Breakfast
Date: 22 October 2013