View from The Hill

Attorney-General Brandis wants High Court to act fast on gay marriage challenge

George Brandis will have the ACT’s gay marriage law challenged in the high court. AAP/Lisa French

Tony Abbott’s gay sister hailed it as an “historic day”, after jubilation broke out in the ACT Assembly at the passage of Australia’s first marriage equality legislation.

Meanwhile an Essential Poll published today showed 57% of Australians believe people of the same sex should be allowed to marry.

But the Abbott government is determined to try to thwart the ACT move. It will commence a High Court challenge ASAP.

The federal government says its advice from the acting Commonwealth Solicitor-General is that the ACT Marriage Equality legislation is invalid because it was inconsistent with the Commonwealth Marriage Act.

A spokeswoman for Attorney-General George Brandis said: “Irrespective of anyone’s views on the desirability or otherwise of same-sex marriage, it is clearly in Australia’s interests that there be nationally consistent marriage laws”.

The government asked the ACT not to implement the new law until the High Court has pronounced, but it has declined. The first weddings are due in early December. The federal government says it would be “very distressing to individuals” if they entered a marriage ceremony, to then find their marriage was invalid.

Brandis’ spokeswoman says the government will ask the High Court to give the case an “expedited hearing”.

It is open to the federal government to seek an injunction to stop marriages until the case is decided.

Both governments claim to have legal right on their side. The ACT slightly amended its bill at the last minute to try to fireproof it against successful challenge, after lawyers urged it to do so.

Constitutional expert George Williams, from the University of NSW, said the ACT did not go as far as some lawyers advised. The ACT law seeks to fill a gap left by the federal marriage law; Williams says that it would have minimised the constitutional risk if it had set up a distinctive form of same sex marriage.

Abbott’s sister Christine Forster is lending moral support to the ACT but she and her partner Virginia (they are engaged) won’t be taking advantage of its law, even if it stands up.

“Virginia and I have talked about it at some length,” Forster told Sky TV today.

“We’re both Sydney girls, we live here, our families are here. … We’ve decided that for us, we want to wait until we can get married here in Sydney.”

In the federal parliament, the question is whether the issue will come up this term, in the form of a private member’s bill - and then whether the Liberals would decide to have a conscience vote, which Tony Abbott has said would be up to the party room.

Forster assumes the matter will arise this term and says “I fervently hope that there will be strong voices in the [Liberal] party room for a conscience vote”. Labor already has one.

A spokesman for the Greens, who pushed the issue in the last parliament, said: “we are contemplating introducing a bill and believe there needs to be cross party sponsorship”. But the provisions for private members’ bills are likely to be much less generous in this parliament than in the “hung” one.

Forster doesn’t think Abbott will ever change his opposition to gay marriage. “But that doesn’t mean that he would stand in the way of the change happening, if he saw that it was the view of his party.”

Williams says it is hard to predict how the High Court will go. Two of the seven judges are new; this sort of issue was not envisaged when the constitution was written.

If the ACT law held up, it would be an enormous fillip for the gay marriage cause, and would likely hasten federal action. If the law fell over, the implications are less clear.

It would be a set back. But Williams points out much could depend on the nature of the judgement – whether, for example, the judges gave an indication that the different drafting approach being taken at the state level - NSW and Tasmania – might survive challenge.

The government has decided on a legal challenge because the alternative course - trying to override the ACT legislation by means of a federal bill - would raise problems of Senate numbers and perhaps argument in the Liberal party room.

If the High Court upheld the ACT law it would be still open to the Abbott government to attempt parliamentary action. But the politics of that would be messy – apart from the existing difficulties, the government would seem to be thumbing its nose at the umpire.

Listen to Christopher Pyne on the Politics with Michelle Grattan podcast, available below, by rss and on iTunes.