Senator George Brandis
Debate was limited. All Liberal MPs voted against the bill, saying marriage is a federal, not a territory issue. All Labor MPs, plus the sole Greens MP, voted for it.
The bill’s title and wording was slightly changed before the final vote, in the hope of boosting its chances of surviving a High Court challenge. However University of NSW law professor George Williams, a strong advocate of same-sex “marriage”, told ABC Radio National on 22 October that he doubted the revised wording is sufficient to satisfy constitutional requirements.
“The move here at the state and territory level will not get us to marriage equality,” Professor Williams said, acknowledging that ACT “marriages” would not be recognised anywhere outside the Territory.
Senator George Brandis, Australia’s new federal Attorney-General, has said his government will challenge the new ACT law because it would breach the Constitution.
Barrister Christopher Brohier, representing Lawyers for the Preservation of the Definition of Marriage, explained the legal situation in a recent media interview:*
The Commonwealth, through the Marriage Act, has legislated to define marriage in Australia as a union of a man and a woman voluntarily entered into for life to the exclusion of all others.
The ACT Self-Government Act says that any enactment of the ACT inconsistent with Federal Law is ineffective unless they can operate concurrently.
The tests developed by the High Court for direct inconsistency ask whether the ACT or state law detracts, alters or impairs federal law. In my view, the ACT law would have a direct contradiction with federal law.
Mr Brohier said that even if the federal government did not challenge the ACT Marriage Equality Act, someone else could do so.
A married couple in the ACT, currently married under federal law, could bring a challenge – arguing that their relationship has been affected because of this Act. Previously, if you said you were married, everyone would know you were married to someone of the opposite sex, but now they have to explain...
A church that is asked to use their premises for a same sex wedding but refuses, could face action claiming that the church’s actions are discriminatory… The church could then argue that the marriage is invalid.
A homosexual couple who break up after marrying under the legislation could also challenge the validity of the Act. There would be lots of property issues – and they could say, well, the marriage is ineffective.
* The Political Spot, ACL, 26/9/13
- Marriage and sexuality