Page 3432 - Week 11 - Thursday, 19 September 2013

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couples from choosing to be married in the ACT. Currently, many same-sex couples are already travelling overseas to marry under foreign marriage equality laws knowing their marriage is not recognised under Australian law.

The government has closely considered the constitutional questions and implications of this bill. There is a view that marriage is a federal issue alone and a matter that only the federal government and parliament has jurisdiction over. The government agrees that it is preferable for the commonwealth Marriage Act to be amended to provide for same-sex marriage for all Australians. Yet the federal parliament is deadlocked, and the new federal government appears to have no appetite to allow such a reform to progress. In the context, then, of our federation, it falls on the states and territories to consider how they will act.

New South Wales, South Australia, Tasmania, Victoria and Western Australia have all seen marriage equality bills introduced into their parliaments. The New South Wales parliament’s Standing Committee on Social Issues has stated there is no doubt that New South Wales, and, by extension, other states and territories, can legislate for marriage equality. In its report on same-sex marriage in New South Wales, the committee stated that section 52 of the constitution provides the federal parliament with exclusive powers over various matters. Section 51 of the constitution grants the federal parliament powers that it holds concurrently with the states. The power to regulate marriage sits in section 51 of the constitution and is, therefore, a power held by both the commonwealth and the states.

Concurrent powers are to be exercised consistently, so the constitution provides at section 109 that:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The Australian Capital Territory, however, faces a different test. Section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth). Under that act:

A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

This act, therefore, provides for a scheme that permits same-sex couples to enter into a marriage under the Marriage Equality Act if they are ineligible to enter into a marriage as defined under the commonwealth Marriage Act. The ACT act is, therefore, capable of operating concurrently with commonwealth law, with the ACT law providing for marriage for same-sex couples and commonwealth law providing for the marriage of opposite-sex couples.

This is a complex and difficult area of the law, but difficulty and complexity must not be excuses for inaction. Professor George Williams, the Anthony Mason Professor and Director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales has said that if legal complexity were a genuine obstacle to legislating, then many things would never get done in parliament. He states:

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