Page 3555 - Week 12 - Tuesday, 22 October 2013
MR HANSON (Molonglo—Leader of the Opposition) (10.04): Madam Speaker, we believe that this issue belongs in the commonwealth parliament. It is a federal issue, and there are a wide range of sound legal opinions that support that position.
The Attorney-General of the commonwealth of Australia has received advice that this bill is invalid by reason of inconsistency with the provisions of the commonwealth Marriage Act, and consequently this legislation will be challenged in the High Court.
The New South Wales parliament Standing Committee on Social Issues conducted an inquiry into same-sex marriage and tabled a report in July this year titled Same-sex marriage law in New South Wales. Let me quote from that report:
If a High Court challenge to a New South Wales same-sex marriage law was mounted, the most likely legal argument would be that the state-based same-sex marriage law conflicts with the Commonwealth Marriage Act. Section 109 of the Australian Constitution provides that where a state and Commonwealth law conflict, the Commonwealth law will prevail, and the state law shall, to the extent of the inconsistency, be invalid …
The Committee finds in this Chapter that equal marriage rights for all Australians may best be achieved under Commonwealth legislation.
The dissenting comments of members of the committee went further. A Labor member, the Hon Greg Donnelly MLC, said in conclusion to his concerns about the constitutional validity of state-based same-sex marriage laws:
Such legislation, if it were to pass the New South Wales Parliament, would most certainly be challenged. I believe that the High Court of Australia would find such a legislative initiative invalid and inoperative.
That opinion is shared by legal opinion provided to the opposition from Lawyers for the Preservation of the Definition of Marriage. In their opinion:
The unique constitutional arrangements in Australia mean that, once the Federal Government has legislated comprehensively in relation to an institution like marriage (as it has), any legislation by a Territory government like the ACT, contrary to the federal legislation, is likely to be invalid, because it is contrary to the Commonwealth of Australia Constitution Act (Constitution Act)—
that is the constitution—
and a Territory’s founding legislation, in the case of the ACT the Australian Capital Territory (Self Government) Act 1988.
The Attorney-General, Simon Corbell, has presented a view that the legislation will be upheld in any High Court challenge because, quoting from the Australian newspaper of 16 September, he “believes the ACT laws can withstand a High Court challenge because the commonwealth act defines marriage as between a man and a woman”. However, quoting from the same article: