Government to mount High Court challenge to ACT same sex marriage law
Attorney General George Brandis has announced the Federal Government will challenge the ACT marriage laws in the High Court when the territory enacts its marriage equality legislation.
In a statement released on Thursday, Brandis said he had been advised by the Acting Commonwealth Solicitor General that the ACT’s same-sex marriage law was invalid as it was inconsistent with provisions of the Commonwealth Marriage Act.
Brandis commented that regardless of people’s views on marriage equality it was essential Australia had consistent marriage laws.
“At the moment, the Commonwealth Marriage Act provides that consistency,” Brandis said. “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.”
Senator Brandis informed the ACT government of plans to mount a legal challenge in a meeting of State and Attorney Generals in Sydney on Thursday.
The ACT Labor government expects the same sex marriage law to pass at the October sitting of the Legislative Council with the support of the Greens. With this in mind, Brandis requested the ACT government not give effect to new laws until the High Court could determine their constitutionality.
“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,” said Brandis.
“It would be better for all concerned if the ACT Government waited for a short time until the validity of the proposed law was determined by the High Court.”
ACT Chief Minister Katy Gallagher told ABC Lateline she had received a courtesy call from Brandis on Wednesday evening that the commonwealth would be appealing the laws.
“He asked me not to commence the laws once they’d passed, and we politely refused, and said we would be commencing them and that we’d see him in court,” said Gallagher.
ACT Attorney General Simon Corbell also expressed disappointment the Federal Government would challenge the ACT same-sex marriage bill.
“I'm disappointed but not surprised by [the Government’s] position. This is an important social reform that is not going to go away.”
Corbell reiterated the ACT would defend its right to legislate on same-sex marriage.
''Attempts to stymie, block or prevent reform will only lead to an even greater impetus for it,''
Australian Marriage Equality acting director, Ivan Hinton said: “Based on the expert constitutional legal advice we have received and that was received by the recent NSW Parliamentary Inquiry into this issue we are confident that a territory and state same-sex marriage laws would withstand a High Court challenge.”
Corbell and Hinton’s confidence the ACT same-sex marriage law could withstand a High Court challenge has been backed up by the release of the Tasmania Law Reform report on Thursday, which further reinforced the findings of a NSW Parliamentary Inquiry that found states can legislate for same-sex marriage.