act same-sex marriage laws: high court challen

This is Wong I mean wrong.

The future of the ACT's same-sex marriage laws hang in the balance today as the High Court prepares to hear a Commonwealth challenge to the legislation.

The ACT Legislative Assembly passed the law in late October and the first weddings are due to take place next Saturday.

But whether those ceremonies will be legal or not will rest on the High Court's ruling.

The principle question in the case is whether the law is inconsistent with the Federal Marriage Act.

It's a familiar theme. The Howard government and later Labor governments stymied earlier efforts by the ACT to recognise same-sex relationships on the basis of inconsistency with the existing federal laws.

Constitutional law expert George Williams says this time the Commonwealth is arguing its Marriage Legislation and the Family Law Act set up an exclusive, complete regime for dealing with marriage.

"They've only dealt with heterosexual marriage which they say still covers the whole field," he said.

This was strengthened in 2004 when the Howard government amended the Federal Marriage Act to define marriage as being between a man and a woman, in a bid to knock out same-sex marriage.

The ACT has a strong argument that the self-government act gives them room to move.
Constitutional law expert George Williams.
But Professor Williams says this may in fact have created a loophole.

"The Commonwealth is arguing those amendments make it absolutely clear that federal law only covers marriage between a man and a woman and that there's no room left for the states and territories to pass a law about same-sex marriage," he said.

"What the ACT will argue on the other hand is that the Commonwealth law has now been narrowed.

"It only deals with heterosexual marriage and so it leaves room for a state or territory to pass a law on different forms of marriage."

The ACT law would then be able to sit side-by-side with the federal law.

He says the case could go either way, and may depend on how the High Court views those 2004 amendments.

Professor Williams says the Commonwealth case is strong, but the ACT has a good chance.

"The ACT has a strong argument that the self-government act gives them room to move and in fact there's extra scope for a territory to pass a law in this area as opposed to a state," he said.

"It really will turn on the High Court's vision of what scope a territory has to pass laws on the same topic as the Commonwealth."

All eyes on Canberra

The case is being watched carefully from near and far.

Kate Dawson from Flint on the Vines says she is hoping her venue will be part of the market for same-sex weddings.
PHOTO: Kate Dawson from Flint on the Vines says she is hoping her venue will be part of the market for same-sex weddings. (ABC News)
A recent similar bill in Tasmania was defeated there, and a bid by the New South Wales upper house to legalised same-sex marriage was lost by a single vote.

The ACT has been criticised by some for not building a stronger law, so that it would survive the High Court challenge.

New South Wales Independent Alex Greenwich says the ACT should have followed expert advice to create a separate status of marriage, as in same-sex marriage.

"Something that would allow same-sex couples to marry in the ACT," he said.

"The scope of their Marriage Act was broader and the criticism from the constitutional experts was that it potentially seeks to regulate the Federal Marriage Act."

Couples hoping to marry on Saturday are also watching with interest, along with the businesses set to benefit.

Kate Dawson from Flint on the Vines, has had numerous inquiries and one booking.

She says she is hoping to be part of the market.

"I have looked into our figures and I predict it should help to increase ours by about 20-percent," she said.

Weddings to go ahead

Ivan Hinton from Australian Marriage Equality says there are many couples, including himself and his partner, still planning to go ahead with a wedding on Saturday.

Ivan Hinton from Australian Marriage Equality says many weddings will still go ahead on Saturday.
PHOTO: Ivan Hinton from Australian Marriage Equality says many weddings will still go ahead on Saturday. (ABC News)
The main concern is whether the High Court will bring down a quick decision or not.

The court has already allowed the case an early hearing, and most expect a decision to give certainty to those hoping to use the law.

Professor Williams has also warned same-sex couples that an injunction until there is a decision can not be ruled out.

In the meantime those hoping to say "I do" may have to call upon a little more patience.

http://www.abc.net.au/news/2013-12-03/act-same-sex-marriage-laws-high-court-challenge-begins/5128748