Leading constitutional law experts have warned that the ACT’s marriage equality reforms will remain vulnerable to a High Court challenge unless the ACT Government delivers on its commitment to pass amendments next week.
The Human Rights Law Centre and Australian Marriage Equality have made public the legal advice obtained from Mr Bret Walker SC and Perry Herzfeld.
The HRLC’s Director of Advocacy and Strategic Litigation, Anna Brown, said the advice demonstrates that further amendments are essential for the laws to have the best chance of surviving.
“We absolutely welcome the ACT’s commitment to achieving marriage equality, but it’s important to get it right. We want the laws to survive and that’s why we are urging the ACT Government to honour its commitment to introduce required amendments as soon as possible to finish the job,” said Ms Brown.
Australian Marriage Equality national director, Rodney Croome, said his group's primary concern is for the couples who will marry in the ACT.
"We welcome the ACT's commitment to getting this legislation right through further amendments. We don't want the solemn life-long vows made by couples under the new ACT law to be undone by a drafting error," said Mr Croome.
The HRLC has provided the ACT Government with suggested amendments which would be easy to make and would ensure the Bill creates a new legal status of “same-sex marriage” clearly distinguishable from federal marriage. This would greatly shore up the law's chances of surviving the High Court challenge that the Commonwealth Government has promised to mount.
Although some intersex, transgender and gender diverse people have expressed concern that the “same-sex” category may exclude them, Ms Brown and Mr Croome said that transgender and intersex people will be able to marry under the Territory law if they cannot marry under the federal Marriage Act.
"The advice we have received confirms that, under current gender recognition laws, no transgender or intersex person will be excluded from marrying under the amendments we want to see to the ACT law,” said Mr Croome.
“The good news is that the expert legal opinion we’ve received confirms that state and territory parliaments are able to legislate in this area,” said Ms Brown.
The legal advice also confirms the ACT’s new marriage laws can also accommodate a future change to recognise a third category of sex or gender.
“Whilst there is more work to do to better recognise intersex, transgender and gender diverse people in the law, today is clearly a great step forward for marriage equality in Australia and there’s little doubt that other states will soon follow suit,” said Ms Brown.
For further comments please contact:
Anna Brown, HRLC Director of Advocacy and Strategic Litigation, on 0422 235 522
Rodney Croome, AME National Director, on 0409 010 668