NSW will attempt to become the second jurisdiction in Australia to legislate for same-sex marriage laws next week as the federal government’s High Court challenge to the ACT’s newly enacted same-sex marriage law commences today.
The NSW Cross-Parliamentary Marriage Equality Group announced this week that a same-sex marriage Bill will be introduced into the NSW Upper House on Thursday.
A report by the NSW Legislative Council’s Standing Committee on Social Issues, released earlier this year, indicated that states did have the power to legislate for same-sex marriage, but could not come to a conclusion on whether such state-based laws would survive a challenge in the High Court.
Labor MLC Penny Sharpe, a member of the Cross-Parliamentary Group, said she was confident the Same-Sex Marriage Bill 2013 was constitutionally valid.
“Because the federal government only deals with marriage for heterosexual couples, our advice says that that would be perfectly consistent with the federal constitution,” she said.
“The ban on marriage for same-sex couples federally has left open the ability for states to legislate for same-sex couples and that’s what we intend to do.”
While welcoming the Bill, New South Wales Gay and Lesbian Rights Lobby co-convener Justin Koonin said it had been framed narrowly so as to ensure its best possible chance of surviving a constitutional challenge, resulting in some implications for trans and intersex people. The Bill does not apply to those who do not identify as either ‘male’ or ‘female’.
“This Bill is part of a wave of support for marriage equality,” he said. “Its introduction signals the determination by our political leaders, and members of the community, to ensure that marriage equality becomes a reality in NSW in the very near future.”
Legal advice prepared by Bret Walker SC and Perry Herzfeld, on behalf of Australian Marriage Equality (AME), also suggests supporters of the law could fight off a legal challenge in the High Court.
“The advice we have from Mr Bret Walker SC is that our Bill is constitutionally sound, assuaging any concerns NSW MPs may have about their power to pass such it,” AME NSW co-convener Dr Shirleene Robinson said.
“After seeing the joy and happiness that accompanied the passage of reform in the ACT … it’s great that NSW is also moving ahead.”
The High Court challenge flagged by Attorney-General George Brandis after ACT’s Parliament passed same-sex marriage legislation on Tuesday will commence later today, with the matter set for a directions hearing this afternoon.
The Federal Government will argue the ACT laws are not consistent with the Commonwealth Marriage Act and is seeking an expedited hearing to prevent same-sex couples from marrying in Canberra in early December.
ACT Deputy Chief Minister Andrew Barr has promised to immediately re-draft the legislation if it is found invalid by the High Court.
“They will give a reason and if the reason still allows room for the ACT to legislate, we will legislate according to the guidelines they have given us,” he said.
“If we can’t get the best possible model because the court says that’s in conflict with the Federal Marriage Act, but there is an alternate model you could use, we will use it.”
On Wednesday, Prime Minister Tony Abbott warned couples thinking of getting married in the ACT under its new marriage laws to wait until the High Court comes to its decision.