In a major setback for the push for state-based marriage equality, the federal government has confirmed that it will mount a challenge against the ACT’s same-sex marriage bill in the High Court as soon as it is enacted.
Speaking from Canberra last week, ACT Attorney-General Simon Corbell confirmed to reporters that he and ACT Chief Minister Katy Gallagher were informed of the government’s intent by federal Attorney-General George Brandis on the night of Wednesday, October 9.
The ACT Parliament is expected to pass a bill legalising same-sex marriage in the territory on Tuesday, but a High Court challenge from the federal government could quickly see the law invalidated and any further attempts to pass same-sex marriage laws at a state level rendered moot.
The government will likely challenge the bill on the grounds that the exclusive right to legislate in matters of marriage belongs to the federal parliament, as outlined in the Constitution. If the High Court agrees with the government’s inerpretation, the decision will set a precedent that could severely undermine efforts to push for marriage equality through various state Parliaments.
While marriage equality advocates have previously expressed confidence that any state or territory-based same-sex marriage law could survive a legal challenge, the ACT has seen similar legislation defeated before; in 2006 the ACT Civil Unions Bill 2006 was successfully challenged by then-Attorney-General Philip Ruddock.
Speaking to the ABC’s Lateline, Gallagher vowed to push a same-sex marriage bill through the ACT Parliament and fight any challenge the federal government may make in court.
Gallagher recounted her conversation with Brandis and expressed confidence that an ACT bill would withstand a legal challenge from the Commonwealth, claiming: “We will get this bill through, and we will get it through in October”.
“He gave me a courtesy call to say that he had received advice; he asked me not to commence the laws once they’d passed, and we politely refused, and said we would be commencing them and that we’d see him in court,” Gallagher told Lateline host Tony Jones.
“It’s a matter of principle for us, and it’s an election commitment we made to the people of the ACT…The path’s been chosen, and we have to pursue it and we will defend it.”
Gallagher also criticised the government for interfering in the governance of the territory.
“The Commonwealth is going to seek to overturn a law that’s been passed by a democratically elected Parliament with the overwhelming support of the community on an issue that we have campaigned long for.”