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How the ACT gay marriage law is designed to fail

The ACT gay marriage act is in deliberate breach of the constitution and is designed only to embarrass the Prime Minister, writes gay rights activist and former Democrats leader Brian Greig.

Having now read the Australian Capital Territory’s Marriage Equality (Same Sex) Act 2013, I can reach no other conclusion than it is deliberately designed to fail. Far from being a genuine attempt to advance the cause of marriage equality, it seems little more than a political stunt aimed at trying to embarrass Prime Minister Tony Abbott.

I am not a QC or expert in constitutional law, but having served for six years as the Australian Democrats’ spokesman for the attorney-general’s portfolio I did come to grips with the fundamentals of federal law and the limitations on state and territory trespass.

This territory act so obviously breaches aspects of the federal constitution that it is impossible for me to believe it does so accidentally. The High Court will not dwell on this issue for long. It will not split in its decision. There will be no dissenting voices.

Without going into the details of this multi-flawed act, suffice it to say that the mere fact it makes reference to the federal definition of marriage in its framework, as well as seeking to legally recognise foreign same-sex marriages in its jurisdiction, kicks this law out of bounds on the full.

So, what on earth is the ACT’s Lilliputian legislature up to?

For almost a decade the key lobby group pressing for change, Australian Marriage Equality, has been working diligently and apolitically towards bringing the nation forward. It has reached out across the crossbenches, winning support and confidence from both doubters and conservatives.

With its credible, persuasive and highly researched legal background, AME has brought the parliaments of Tasmania and New South Wales to the brink of passing state-based gay marriage laws. This has only been possible by AME arming itself with the best advice it can get from constitutional expert Bret Walker SC, among others. Walker is a former president of the NSW Bar Association and former president of the Law Council of Australia.

Walker’s main point to equality reformers, without wanting to be too simplistic in interpreting his advice, is that the states and territories do in fact have the power to act, but only where they expressly legislate for same-sex marriage outside of the federal definition of marriage. The two laws can coexist. However, trying to blend state or territory law with Commonwealth law, as the ACT does, dooms that reform to failure.

Despite the best legal advice from Walker and the best political advice from AME from multiple meetings, ACT Chief Minister Katy Gallagher and her Attorney-General Simon Corbell have forged ahead, into certain defeat.

Presumably the ACT government’s “strategy” is to try to embarrass Abbott by bringing sharp focus to the issue of marriage equality and the need for federal action. Certainly, the timing seems designed to create lots of media images of happy lesbian and gay couple getting married, only to have Big Bad Tony ruin their weddings with a successful legal challenge. If this really is the strategy, it’s dumb, self-indulgent and destructive. When the High Court rules the ACT law invalid the focus won’t be on Abbott, it will be on the ACT’s Labor government which ignored all the warnings before charging into the federal sphere like a bull in a china shop.

The saddest part of all this is that well-meaning gay couples in Canberra seem to have been cynically used as pawns in a political game by the ACT Assembly against Abbott, and worse still is the setback this defeat will bring about in other states.

When the High Court rules that the ACT law is a dead duck, the religious Right and other anti-equality campaigners will trumpet loudly that marriage is “clearly a federal issue”, and those cautious MPs in states now considering their own legislation will retreat to inaction, handballing the issue to the Commonwealth. They will not discern the subtle difference between territory and state powers to understand that states really do have a way forward if it is done properly.

The clumsy intervention of the ACT into the equal marriage campaign, in this way, at this point in time, does the overall movement in Australia a great disservice. Those responsible should be held accountable.

*Brian Greig OAM is a former Democrats senator and veteran GLBT rights campaigner

13
  • 1
    Barry Brannan
    Posted Thursday, 31 October 2013 at 1:28 pm | Permalink

    Well… unless you go into the details and tell us about the “obvious” flaws in the ACT legislation, we can only take your word that the only conclusion is that this is a stunt.

    But I’d like to know more so I can decide for myself.

  • 2
    Posted Thursday, 31 October 2013 at 1:30 pm | Permalink

    I agree with Barry. Why aren’t the apparently offending provisions of the ACT Act severable?

  • 3
    Sean
    Posted Thursday, 31 October 2013 at 2:03 pm | Permalink

    This article doesn’t even refer to the ACT Self Government Act, which is a central part of how the ACT government thinks it can make this law work.

    Is Brian just assuming that the ACT under the Self-Government Act has the same relationship with the Commonwealth as States do under the Constitution?

  • 4
    beachcomber
    Posted Thursday, 31 October 2013 at 2:04 pm | Permalink

    Mr Greig claims not to be a QC or a Constitutional Expert. He fails to mention he has no formal legal training at all. Which could explain why he fails to understand that in law, there are almost as many opinions as there are lawyers. He may believe Mr Walker is the fount of all knowledge, but I’m sure there are hundreds of legal people who have different ideas about the best way to achieve the same outcome. As an ex-politician, it is inevitable that he has a political agenda from joining the argument, which further undermines the value of his contribution.

  • 5
    Malcolm Street
    Posted Thursday, 31 October 2013 at 2:14 pm | Permalink

    I’m not a lawyer, but I understand the ACT’s legal advice is that territory law has an ability to overlap with commonwealth law in some circumstances in a way that is unavailable to states, which is why the ACT law has been drafted in this way.

    If the ACT law was submitted by a state, yes, it would be DOA at the High Court. However, it’s being submitted by a territory.

    As others have noted, the article is remarkably short on specifics and indeed appears to imply that the legal situation on state vs territory rights is the same. It isn’t.

    I can’t see the ACT government going into this (not least with a gay Deputy Chief Minister) as a stunt so I assume they believe they are on good legal ground. I’m willing to be persuaded that this is not the case, but this article isn’t going to do it.

  • 6
    Richard
    Posted Thursday, 31 October 2013 at 3:21 pm | Permalink

    agree with others on the weakness of this analysis.

    taking the critique elsewhere, the argument that this won’t work to shore up support for marriage equality, and won’t harm Abbott, is also unpersuasive. i find it hard to believe that a public which is broadly sympathetic to gay rights would look kindly upon Abbott fighting to annul hundreds of happy marriages between loving people. what kind of reptile would blame the ACT government for this? well, news ltd aside, anyway.

  • 7
    thelorikeet
    Posted Thursday, 31 October 2013 at 5:25 pm | Permalink

    I am far from convinced that the ACT Act is bound to fail (but we’ll know soon enough, won’t we).

    My reading is that the ACT used the Commonwealth Act as a reference point for what is NOT covered. That is, it refers to the Marriage Act solely to define the metes and bounds of its own jurisdiction. It is unconcerned with the content of the Commonwealth Act otherwise, and, as I read it, the Commonwealth Act is unconcerned with the content of the ACT Act. They are about different things: traditional marriage and other non-traditional marriage. If you are eligible for a traditional marriage, you cannot be eligible for the Territory marriage.

    The Commonwealth no doubt will argue that its law “covers the field” of marriage, and no Territory law about marriage of any sort is therefore valid. The counter argument is that the Feds, especially after the Howard man-woman amendment vacated that field and do not cover it.

    Another argument could be run that the end-of-marriage provisions are contrary to Commonwealth law (i.e. inconsistent with the Family Law Act). That would be a neat technical twist.

    There is clearly an arguable case on both sides.

    Submission have not yet been published on the High Court website. Only when we see those will we know what is argued. They’ll be HERE http://www.hcourt.gov.au/cases/current-cases-submissions in due course.

    But I do agree with Mr Greig on this - it may indeed not take long and the Court is unlikely to be deeply divided. Otherwise, his analysis is political not legal …

  • 8
    Scott
    Posted Thursday, 31 October 2013 at 5:31 pm | Permalink

    Section 51(11) of the constitution states that the commonwealth has the right to make laws based on marriage

    Section 109 of the constitution states that if there is an inconsistancy between the laws of the state and the laws of the commonwealth, the law of the commonwealth will prevail.

    Then there is Section 52(i) which states that Commonwealth has exclusive powers to make laws for the seat of the government of the commonwealth (i.e ACT).

    So even if it passes the High Court test (which is unlikely…marriage is pretty much defined as a Federal responsibility), all the Feds would need to do is to modify the ACT self Government Act (1988). They will have the numbers in the House and probably the Senate (definitely after June 2014).

  • 9
    Malcolm Street
    Posted Thursday, 31 October 2013 at 5:37 pm | Permalink

    To put some more context in this, here’s a quote from an article in The Canberra Times of 21st October, which shows clearly that the ACT is approaching this from a quite different legal position than the states, one that is available only to territories:

    Mr Corbell [ACT Attorney-General] said on Sunday the government did not agree with the advice from interstate, partly because the test of consistency for the territory differed to the way consistency was tested for the states.

    He said the test for the ACT was set out in section 28 of the self-government act, while for the states it was section 109 of the constitution.

    Mr Corbell said a territory law “is valid to the extent it is capable of concurrent operation” with federal law. “These arguments are finely balanced,” he said.

    The government has closely considered these issues and we have received these representations but on balance we see no need to amend the bill.”

    Read more: http://www.canberratimes.com.au/act-news/acts-samesex-marriage-bill-at-risk-law-experts-say-20131020-2vvbn.html#ixzz2jHLaCbrr

    As I said earlier, I’m prepared to be persuaded but from this we need to see a specific analysis based on Section 28 of the Self-Government Act, NOT the Constitution.

  • 10
    David Coles
    Posted Thursday, 31 October 2013 at 7:22 pm | Permalink

    The author may very well be right but it is impossible to come to that conclusion on the basis of his article.

    The complexities of the inter-relationship of the Constitution and the ACT Self Government Act and the manner in which the new act will interact with the Commonwealth law will exercise the minds of real constitutional lawyers.

  • 11
    Posted Thursday, 31 October 2013 at 8:43 pm | Permalink

    Of course the Commonwealth has power to make laws about marriage but section 5 of the Commonwealth’s Marriage Act 1961 defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. The argument is that the Commonwealth Act is silent about the union of a man and a man and about the union of a woman and a woman which is therefore vacant for legislation by the states and territories.

    Of course the Commonwealth can legislate to overturn any law of a territory, but that requires a vote of Parliament which Abbott wishes to avoid because that would highlight divisions within his party.

  • 12
    Scott
    Posted Friday, 1 November 2013 at 9:43 am | Permalink

    There is not a lot of difference between marriage and same sex marriage, especially if the legal rights are the same. If it looks like a duck, quacks like a duck etc. Just pure semantics otherwise.
    If lawmakers want this law was to get up, they have to take “marriage” out of the definition.
    And Abbott won’t have any problem with refusing a conscience vote on this issue if he wants to change the self governing act. He is the hero of the right having bought them back into power quite quickly. The left wing of the party will fall into line without issue.

  • 13
    Rod Shogren
    Posted Friday, 1 November 2013 at 5:04 pm | Permalink

    This is just plain dumb, but that doesn’t mean it can’t be malicious, too. For a more thoughtful analysis, read Waleed Aly: http://www.canberratimes.com.au/comment/equality-more-than-just-a-matter-of-language-20131031-2wlun.html

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