After the predictable election of the conservative federal government in Australia, two other jurisdictions have thrown down the gauntlet to the federal parliament by launching their own legislation with regard to same-sex marriage.
The government of the Australian Capital Territory (ACT) -- where Canberra is located (think the D.C. and Washington) -- has passed a bill authorising same-sex marriages in the Territory, throwing conservative Prime Minister Tony Abbott and his pugnacious Attorney General a curly constitutional challenge.
Constitutionally, the imprimatur to recognise marriages has always been a power accorded to the Federal government, rather than the governments of the individual states and territories, so this move by the ACT administration will be thrashed out in a High Court challenge announced by Abbott's krewe.
Prime Minister Tony Abbot's sister Christine Forster, photographed here with her partner Virginia Edwards, has different views from her brother on equal rights. (Photo: Janie Barrett The Age)
ACT Chief Minister Katy Gallagher said in an address to the ACT Parliament on Oct. 22nd that her government had moved to enact the law despite the threat of a High Court challenge by the Commonwealth.
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| ACT Chief Minister Katy Gallagher |
"There is no longer any excuse if there ever was to discriminate against same sex couples in our community," she said.
"They are our children, our parents, our brothers, our sisters, our leaders, our business people, our mentors and our colleagues. More than anything, they are our equals.
"The marriage equality act puts this fundamental principle and human right into law."
Many Australian couples have already traveled to the more enlightened neighbour New Zealand (where marriage laws were changed in April 2013 and became law on 19 August 2013), to exchange vows, and the group Australian Marriage Equality reports more than 700 couples have now expressed interest in marrying in the ACT.
ACT Attorney-General Simon Corbell had introduced a bunch of late amendments to the Marriage Equality (Same-Sex) Bill 2013 in order to improve its chances of surviving a High Court challenge from the Abbott-led federal government.
The amendments were aimed at fending off the High Court challenge by minimising any inconsistency with commonwealth legislation.
Immediately after the ACT move, the Murdoch empire newspaper The Australian carried a story that confirmed the Abbott government would request the High Court give the case "an expedited hearing".
A spokeswoman for Attorney General Senator George Brandis said the federal government had received advice from the acting commonwealth Solicitor-General Robert Orr QC that the bill was invalid.
The spokeswoman said the federal government would challenge the legislation in the High Court and urged the ACT Labor government not to give effect to the laws.
"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," she said.
The new federal Attorney General George Brandis wants to minimise
distress for same-sex couples. (Picture: Aaron Francis Source: The Australian)
Speaking now from both sides of his mouth, the federal Attorney-General George Brandis claimed that this move was in part to minimise any ''distress'' for the hundreds of gay couples expected to marry from mid-December onwards if the court sides with the Commonwealth.
New South Wales will begin debating same sex marriage laws in state parliament next week after a group of MPs pushing for the reform received expert advice their bill can survive a challenge in the High Court.
The Sydney Morning Herald reported that Labor MP Penny Sharpe - a member of the cross-party working group advocating for the laws - will introduce the bill in the upper house on October 31.
The group of NSW MPs has advice from barrister Bret Walker, SC, that their bill is constitutionally valid. The advice says the key consideration is that the NSW bill gives same sex marriage a separate ''status'' from a marriage under the federal Marriage Act and therefore is not in conflict with it.
"There's been a sea change within conservative thinking on the issue of marriage equality": NSW State Labor MP Penny Sharpe. Photo: Sahlan Hayes
''In our view, an act in the form of the NSW bill would not be inconsistent with the Marriage Act 1961,'' it concludes.
University of NSW constitutional law expert George Williams said the bill was in ''good shape'', having been carefully redrafted after an upper house inquiry.
''They really have done everything they possibly could to give it the best chance of surviving,'' he said. ''There's no certainty about this. But it maximises the chance of it being constitutional and Bret Walker's advice is that it gets there. But really only the seven judges [of the High Court] can tell you that.''
State parliaments in Tasmania and South Australian have previously voted down same-sex marriage bills but proponents are watching closely the outcome in the courts.
The previous Labor administration in Canberra removed many other areas of discrimination against same-sex couples in long-term relationships, with legislation passed in 2008. But they baulked at providing equal marriage rights. During the 2013 federal election campaign, former PM Kevin Rudd suddenly switched positions on the issue and came out in favour of equal marriage rights, but his party lost control of the upper and lower houses and Labor went into Opposition, leaving the ground to the deeply conservative Abbott, who has refused to allow politicians on his side a conscience vote when the issue came up under a Greens' sponsored bill last year.
With the Conservatives in power in federal parliament and soon to gain control, too, of the Senate mid-year, the chances of a vote in favour of changing the marriage laws -- even if a bill were to be tabled -- still look slim. This constitutional challenge seems to be the only way forward at this time.
