MARRIAGE LAW: by Terri M. KelleherNews Weekly
Ploy to make Coalition legalise same-sex marriage
, October 26, 2013
Australia’s same-sex marriage lobby is using state and territory bills in an attempt to manoeuvre the federal Coalition government towards granting a so-called “conscience vote” on changing Australia’s Marriage Act.
This year alone there have been three such bills — in South Australia, New South Wales and the Australian Capital Territory. These moves are really about putting pressure on the Commonwealth government to pass a federal bill for same-sex marriage.
State and territory same-sex marriage bills are open to constitutional challenge. In South Australia a same-sex marriage bill was defeated earlier this year in the state’s lower house, with Liberal MPs who opposed the bill arguing that it was unconstitutional.
Leading Australian constitutional lawyer David Jackson QC was asked to provide a legal opinion for the NSW Legislative Council inquiry into a proposed same-sex marriage bill. He thereupon advised the NSW Department of Attorney-General and Justice that any attempt by a state to legalise same-sex marriage would be inconsistent with the federal Marriage Act and so invalid, pursuant to Section 109 of the Constitution.
The NSW Legislative Council Inquiry Committee subsequently determined that “equal marriage rights for all Australians may best be achieved under Commonwealth legislation”. And since then there has not been a same-sex marriage bill moved in NSW.
Prime Minister Tony Abbott has said that the ACT is entitled to do what it wants within the law. However, it has been reported that Attorney-General George Brandis has received advice from the Commonwealth Solicitor-General that the proposed ACT law is unconstitutional and therefore would be invalid because of inconsistency with the federal Marriage Act. It is understood the federal Coalition is considering a High Court challenge if the ACT passes the bill.
The British experience should give the Coalition pause before allowing same-sex marriage.
Britain’s Conservative Party Prime Minister, David Cameron, has admitted that that his forcing of his government’s controversial same-sex marriage legislation through the House of Commons earlier this year was a big mistake. Although he remains a committed supporter of same-sex marriage, he said he regretted the uproar it had caused within the party and that he had underestimated the scale of opposition from his own party’s supporters and the church.
Out of 303 Tory MPs, 136 voted against changing the historic definition of marriage and dozens more abstained. This was one of the most serious rebellions ever suffered by a Conservative Prime Minister and one that would have been even greater if ministers and their parliamentary aides had not been pressured to support the Prime Minister.
The passing of Britain’s same-sex marriage legislation is being blamed by Conservative Party MPs and officials for the catastrophic drop in party membership by more than half since Mr Cameron became leader in 2005. Many former members cited same-sex marriage as their reason for not renewing their membership, and one branch chairman resigned after 34 years over the issue. One Tory MP said he knew of a colleague who had lost 25 per cent of her members over the parliamentary vote on same-sex marriage.
All the indications are that, if the ACT passes its proposed bill for same-sex marriage — and, given the composition of the ACT’s single-chamber parliament (eight Labor and one Green to eight Liberal), it is almost certain to do so — the federal government will then challenge it in the High Court.
It seems a great waste of taxpayer money to have to do so when the legal opinions indicate such a territory law would be unconstitutional.
However, same-sex marriage has certainly not been a benefit for Britain’s Conservative Party. Australia should take note.
Terri M. Kelleher is Victorian president of the Australian Family Association.