Page 3556 - Week 12 - Tuesday, 22 October 2013

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University of Sydney constitutional law expert Helen Irving says the stronger argument is that the commonwealth law is intended to cover all kinds of marriage.

“When you have an act called the Marriage Act and it defines marriage as a certain type of union, that’s what marriage legally means …”

“It’s not an act that’s called the Heterosexual Marriage Act, which allows there to be the Same Sex Marriage Act and other types of marriage conceivably.”

Madam Speaker, there are other supporting opinions. Let me quote extracts from an ABC article titled “Will the ACT’s marriage equality bill survive a High Court challenge?”:

Associate Professor Dan Meagher of Deakin University told Fact Check that “given the amendments to the Marriage Act made by the Howard government in 2004, there is a decent argument that the Commonwealth legislation now covers the field of marriage including same-sex”. Similarly, Professor Patrick Parkinson of the University of Sydney said the Marriage Act “purports to cover marriage—completely and definitively” …

Professor Parkinson told Fact Check that proposals in those states “purport to create a new and hybrid institution, hitherto unknown anywhere in the world called a ‘same-sex marriage’ with its own register, celebrants and characteristics”. He says that because the ACT bill would make “the institution of marriage” available to same-sex couples it is directly inconsistent with Commonwealth law. In Professor Parkinson’s view, “the ACT bill is by far the least likely of any of the current bills to survive constitutional challenge” …

When ABC Fact Check last looked at state laws on same-sex marriage, it found the issue to be a lawyer’s picnic. A challenge to the ACT laws looks equally tasty for the legal community.

However, the ACT bill has some problems and its long-term prospects are doubtful.

Crispin Hull, a commentator not usually known for his conservative views, said this in his opinion piece in the Canberra Times of 20 September titled “We’re wedded to the courts”:

Ultimately, same-sex marriage will require a Commonwealth law, even if it’s a long time coming.

Patrick Parkinson, professor of law at the University of Sydney and president of the International Society of Family Law, outlined his concerns with this legislation in his Fairfax Media article on 21 September titled “Legal pitfalls of gay marriage”. I quote:

The momentum towards enactment of the Marriage Equality Bill in the ACT would appear to be unstoppable. It is a government bill, and with the supporting vote of the Greens’ member, it will pass. Nonetheless, when a bandwagon is hurtling towards a cliff, someone needs to say something to protect the passengers.

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