Will the ACT equal marriage and divorce laws survive a challenge?
Friday, September 27, 2013
Tony Abbott and the ALP will soon be tested about what to do with the proposed ACT Marriage Equality Act. The Act, if passed, will allow same sex marriage in the ACT. People outside the ACT will be able to get married there under the proposal. It is likely to be the first of such bills to be passed, others being contemplated in NSW, SA and WA.
When the ACT previously passed similar laws, they were overruled by the Government of the day- first by John Howard, and then by Kevin Rudd. That can’t happen now. Changes to Commonwealth laws in 2010 mean that for the Commonwealth to override an ACT law, it’s not just a proclamation of the Governor-General at the behest of the Prime Minister of the day, but there would need to be special legislation passed by both Houses.
Until 30 June the Senate is controlled by the Greens and the ALP (if the ALP did not allow a conscience vote on the issue). If the ALP votes as a bloc, then the proposed disallowance by Tony Abbott will be disallowed. If the ALP is wedged on the issue, as it was when John Howard amended the Marriage Act, so that marriage was only between one man and one woman, then who knows what it might do? It might take the Coalition’s lead and seek to overturn the ACT laws, or might allow a conscience vote- meaning that the disallowance will pass.
If Tony Abbott wanted to, he could use the failure to pass this legislation as a trigger for a double dissolution, but three months must pass between the first rejection in the Senate and the second- allowing plenty of time for marriages to be pronounced in the ACT.
From 1 July legislation it’s anyone’s guess as to whether the laws might be passed- given the bunch of minor parties who might allow or block passage, including the Palmer United Party.
In the meantime, depending on how quickly the ACT and the Abbott government act, it is possible that we may have a Californian style wedding gold rush- when many same sex couples seek to marry in the ACT before the law changes. Anyone contemplating marrying in the ACT will have to fill out a notice to marry and give one month’s notice of intention to marry. They will also not be allowed to marry if they are already married (which seems to be either a heterosexual marriage or a same sex marriage).
The proposed ACT laws work on the premise that they run parallel to the Marriage Act, and therefore are not overruled by it. It is likely that there will be a High Court challenge, but there is every chance that that challenge will be unsuccessful.
The proposed laws also provide for divorce. Here I wonder if the laws are not open to challenge. The definition of “marriage” under the Family Law Act appears not to be limited to marriages recognised under the Marriage Act. It may well be that the scheme for divorces under the ACT laws may not survive a challenge as the proposed laws as to divorce may run directly counter to the Family Law Act.
Time will tell.
