Commonwealth to fight ACT same-sex marriage bill in High Court

Updated

The Federal Government plans to challenge ACT same-sex marriage laws in the High Court when the territory enacts legislation.

The ACT Labor Government expects the law to pass with the support of Greens MLA Shane Rattenbury when the ACT Legislative Assembly sits later this month.

Same-sex marriage is legal in: New Zealand, 2013

Uruguay, 2013

Denmark, 2012

Argentina, 2010

Portugal, 2010

Iceland, 2010

Sweden, 2009

Norway, 2009

South Africa, 2006

Spain, 2005

Canada, 2005

Belgium, 2003

The Netherlands, 2000

If so, the first same-sex marriages could happen as early as December.

ACT Attorney-General Simon Corbell says it is disappointing that the Federal Government will be challenging the laws.

Mr Corbell presented information on the ACT's same-sex marriage bill at a meeting of Commonwealth, state and territory attorneys-general in Sydney today.

At the meeting, Federal Attorney-General George Brandis confirmed that the Commonwealth will be challenging the bill when it becomes law.

Senator Brandis says he has advice the ACT's Marriage Equality Bill is "invalid by reason of inconsistency" 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," Senator Brandis said in a statement.

"At the moment, the Commonwealth Marriage Act provides that consistency. The ACT's proposed law is a threat to that well-established position."

Senator Brandis has asked the ACT Government not to allow any same-sex marriages until after the High Court rules on the ACT bill.

"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," he said.

I'm disappointed but not surprised by [The Commonwealth's] position. This is an important social reform that is not going to go away. ACT Attorney-General Simon Corbell

But Mr Corbell says he will robustly defend the ACT's right to legislate on same-sex marriage.

"As we know, we expect that there is a majority on the floor of the assembly to pass this important reform and the ACT will be robustly defending the bill when it becomes law and when it becomes the matter of the High Court challenge," he said.

"It is disappointing that the Commonwealth believes they should try to have the ACT law struck down. That is a matter of much regret because this law should be allowed to stand.

"It is capable of concurrent operation with the Commonwealth law."

Mr Corbell says he is disappointed many other states and territories are not attempting to introduce their own same-sex marriage bills.

"It would be fair to say that the Liberal states and territories support the Commonwealth position that the ACT law, in their view, is inconsistent with the Commonwealth law," he said.

"I'm disappointed but not surprised by that position. This is an important social reform that is not going to go away."

If the law is struck down, any same-sex marriages would become null and void, although Mr Corbell said the ACT would recognise those commitments in another way, such as civil unions.

Australians back same-sex marriage: Vote Compass

During the 2013 federal election campaign, Vote Compass data from 1.4 million Australians showed the majority of respondents supported same-sex marriage.

The data found 52 per cent of respondents supported same-sex marriage, while 36 per cent opposed it and 12 per cent were neutral.

Voters who identified themselves as left-leaning overwhelmingly supported same-sex marriage (78 per cent), compared to just 18.6 per cent of right-leaning voters.

In the ACT, 63 per cent of Vote Compass respondents supported same-sex marriage, while 25.6 per cent opposed it and 11.4 per cent were neutral.

Why can states/territories legislate on marriage? Marriage laws are typically the responsibility of the Commonwealth.

The Federal Government argues it has sole responsibility for marriage laws, but the states and territories dispute that using a loophole.

The states and territories believe because the Commonwealth legislates specifically for marriage between a man and a women, states can then fill the gap and legislate on same-sex marriage because it is not currently covered by the Commonwealth.

A NSW Parliamentary inquiry this year found states and territories had the power to legislate for same-sex marriage.

This issue is what a High Court challenge will seek to answer.

Topics: federal---state-issues, states-and-territories, federal-government, lgbt, marriage, act, canberra-2600

First posted