Commonwealth ‘doesn’t prohibit’ gay marriage, Australian Capital Territory argues

November 25, 2013 – 6:34PM

Peter Jean


Marriage is based on difference, not sameness, writes, John Woods

Photo: Wolter Peeters

The federal parliament has failed to outlaw same-sex marriages, the ACT government has argued in a submission to the High Court of Australia.

The ACT Legislative Assembly passed Australia’s first same-sex marriage law in October, prompting a High Court challenge by the federal government.

The Commonwealth has exercised its legislative power in a limited manner to refuse the recognition of foreign same-sex marriages but has gone no further.

ACT’s submission to the High Court

The territory government on Monday filed a response to a Commonwealth submission which had argued the ACT same-sex marriage law was unconstitutional.

The ACT’s legal team said that territory-based same-sex marriage laws could operate concurrently with the federal Marriage and Family Law Acts.


While Commonwealth law prevented the recognition of same-sex marriages solemnised overseas, it did not prohibit same-sex marriages from being created in Australia.

“At the present time, the Commonwealth has not exhausted its legislative power with respect to either recognising or prohibiting same sex marriage,’’ the submission said.

“The Marriage Act is concerned only with marriage as described by [section five] of the Act, but not otherwise.

“The Commonwealth has exercised its legislative power in a limited manner to refuse the recognition of foreign same-sex marriages but has gone no further.  The Marriage Act does not speak to same sex marriages solemnised in Australia.’’

The ACT argued that Commonwealth law prohibited bigamous, polygamous, involuntary and under aged marriage.

But there was no express prohibition on same-sex marriages.

“Importantly, the same sex marriages are not designated as “prohibited relationships,’’ the ACT submission said.

The ACT’s legal team includes Solicitor-General Peter Garrisson, SC, and Kate Eastman, SC.

In its submission to the court, the Commonwealth argued that same-sex couples felon the wrong side of a legal “binary divide’’ and must remain unmarried.

The Commonwealth has until November 29 to respond to the territory’s submission.

The case will be heard by the full bench of the High Court on December 3 and 4.

Due to notice requirements, the ACT’s first legal same-sex weddings are not due to occur until December 7.

The Canberra Times

Joy as members prepare to debate marriage laws

September 19, 2013

Lisa Cox and Peter Jean


Paul McCarthy (L) and Trent Kandler, first Australian same sex couple to wed in New Zealand.

Paul McCarthy (L) and Trent Kandler, first Australian same sex couple to wed in New Zealand. Photo: Hagen Hopkins

It will be a ”proud moment” on Thursday to watch the ACT move towards same-sex unions, say the territory’s marriage equality advocates.

The ACT government will introduce its same-sex marriage legislation on Thursday morning and says it will be a ”significant day” that could see the territory become the first Australian jurisdiction to legalise same-sex marriage.

The laws are expected to be debated and passed with the support of government and Greens MLAs in October.

Ivan Hinton is one Canberran who will be at the Assembly for the introduction of the bill. Mr Hinton, who is the deputy national director of Marriage Equality Australia, married his partner Chris Teoh in Canada nearly five years ago.


”To see them move to actually achieve marriage equality in the territory is a proud moment for me,” Mr Hinton said. ”It’s something that we’ve expected for quite a while.”

Mr Hinton said the territory was moving swiftly on the issue now that New Zealand had enacted its marriage equality laws. ”I anticipate that towards the end of this year when we actually see this bill passed we are going to get a large number of Canberrans celebrating their relationships with family and friends for the first time on Australian soil.”

Attorney-General Simon Corbell said on Wednesday ”the bill would crystallise the entitlement of same-sex couples, and send a clear message that we all deserve to be treated with dignity and respect, regardless of our sexual orientation”.

The government has vowed to fight any court or federal challenge to the laws. The Australian Christian Lobby has already warned it will call on the new Abbott government to overturn the laws, which would require a vote in both houses of the Federal Parliament.

A group of lawyers opposed to same-sex marriage has also warned that the ACT marriage bill is likely to be inconsistent with the federal Marriage Act. Adelaide barrister Christopher Brohier, of Lawyers for the Preservation of the Definition of Marriage, said it was likely that the ACT bill would be ineffective.

But the government believes its legislation can operate concurrently with the federal Marriage Act.

Canberra Times

ACT same-sex marriages might be annulled: Libs

September 17, 2013

Peter Jean


Jeremy Hanson.

Liberal leader Jeremy Hanson says it is inappropriate for the Assembly to debate marriage equality legislation. Photo: Jay Cronan

Same-sex couples who wed under ACT laws could quickly find their marriages annulled if a High Court challenge was mounted, the ACT opposition has warned.

The ACT government will introduce a bill to the Legislative Assembly to allow same-sex marriages in the territory.

The bill is likely to pass the 17-member Assembly with the support of all eight Labor MLAs and Greens member Shane Rattenbury.

But Liberal leader Jeremy Hanson said it was inappropriate for the Assembly to debate marriage equality legislation.


Mr Hanson said any local same-sex marriage law would inevitably be challenged through the courts because marriage was a matter for the Commonwealth.

”I don’t think it’s something that we can pass in the Legislative Assembly without it being challenged in the High Court,” he said.

The ACT government has legal advice that the Assembly can legislate for same-sex marriage without coming into conflict with the federal Marriage Act.

But some legal experts believe state or territory-based same-sex marriage laws could be struck down by the High Court.

Mr Hanson said the eight Liberals in the Assembly had differing views on same-sex marriage but all agreed it was an issue that should be resolved at the federal level.

”Ultimately, I don’t think that this is something that we should be driving as a controversial social issue out of the Legislative Assembly of the ACT,” he said.

”It’s a national issue. We just had a federal election and the two parties who were advocating gay marriage went backwards significantly.”

As well as facing hurdles from possible court challenges, an ACT same-sex marriage law could be at risk of being vetoed by the Federal Parliament.

Greens Senator Sarah Hanson-Young said her party would oppose any attempt to override marriage equality in the ACT.

”Tony Abbott needs to listen to the overwhelming support for equality

rather than bowing to pressure from groups like the Australian Christian Lobby,” Senator Hanson-Young said.

”As a result of the Greens’ Self Government Bill, which was passed in the last term of government, marriage equality in the ACT has been Abbott-proofed by forcing any move to overrule territory legislation must be approved by Federal Parliament. The Greens will stand up to any attempts to dismantle equality in the ACT. ”

Former local Liberals leader Zed Seselja, who appears to have won the second ACT Senate seat at the election, refused to comment on how he would vote if an attempt was made to override the same-sex marriage law.

A spokeswoman for Mr Seselja said it was not yet certain he had won the Senate seat so it was premature to speculate on matters that might or might not come before the Senate.

ACT Labor senator Kate Lundy praised the ACT government for introducing the same-sex marriage bill.

”As a proud member of the ALP, it is my belief that all people are entitled to respect, dignity and the opportunity to participate fully in society regardless of their sexuality,” Senator Lundy said.

Canberra Times