The Australian Government will seek to have same-sex marriages conducted in the Australian Capital Territory (ACT) declared unconstitutional in the High Court of Australia when the ACT Government passes its law.
Australian Attorney-General George Brandis sought advice from the Australian Commonwealth Solicitor-General on the constitutionality of such marriages and the Weekend Australian reports that the legal advice received was that they could be challenged in the courts despite a leading constitutional expert advising otherwise.
The Australian Government decided to take the issue to the courts after senior figures within the Opposition Labor Party began pushing for a binding vote to protect the Australian Capital Territory’s right to make its own laws – something that would have prevented Australian Prime Minister Tony Abbott from passing a bill to strike down the ACT’s same-sex marriage law before July next year.
By then hundreds of same-sex couples would have been legally married in the ACT.
Australian constitutional expert and University of New South Wales law professor George Williams has advised that it is incorrect that laws regarding marriage can only be passed at a national level since Australia passed a national Marriage Act in 1961.
‘It seems likely the federal Marriage Act does not prevent a state from legalizing same-sex marriage,’ Williams advised in 2010.
‘Amendments to the Act in 2004 made it clear that the law applies exclusively to marriage between a man and a woman. This Howard government measure had the unintended effect of reducing the possibility of a conflict and thereby opening up the field of same-sex marriage to the states.’
‘The opportunity now exists for a state to re-enter the field by permitting same-sex marriage.’
A New South Wales state parliament inquiry into same-sex marriage at a state level earlier this year also concluded that the notion that only the Australian Parliament could pass laws regarding same-sex marriage was false.
Australian Marriage Equality acting director Ivan Hinton said that the campaign for marriage equality in Australia was confident of the ACT’s law surviving court challenge when it is passed.
‘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,’ Hinton said.
‘Our confidence is shared with the ACT Government who have already declared that they would defend the law vigorously if challenged. It is imperative that George Brandis releases any advice he has received from the Solicitor General to allow for public and expert scrutiny before any action is taken
‘As a result of progress in Tasmania this week we are expecting further constitutional legal advice to be released that will further reinforce states and territories right to legalize same sex marriage. We congratulate the ACT and all other states progressing with state and territory marriage laws and for seeking to deliver a reform that a strong majority of Australians believe in as it will strengthen couples, families, and communities"
‘Regardless of what the Government says or does, we expect loving and committed same-sex couples from around the country to start celebrating their weddings on Australian soil this year in the ACT.’
The ACT Government is expected to pass its bill any day now, and the state of New South Wales may soon vote on a similar bill.