View from The Hill

View from The Hill

Gay marriage an early test for Abbott

Tony Abbott’s first big test in government comes as the ACT introduce gay marriage legislation. AAP/Lukas Coch

Tony Abbott had hoped he wouldn’t be confronted with the gay marriage issue for quite a while. Now, just a day after the new government’s swearing in, it’s potentially posing a major challenge for him.

The ACT government introduced legislation today to legalise same sex marriage there. It will be passed next month.

Does the Coalition government let it be, or try to overrule it?

Abbott declared today: “Obviously the ACT is entitled to do what it wants within the law …. the Attorney [George Brandis] will be seeking legal advice on precisely how far the ACT can go on this”; he added that “under the constitution the Commonwealth has responsibility for marriage.”

If the government wants to go down the override path it could be fraught for both sides of politics.

Once it was just a stroke of a ministerial pen. But a Greens bill, eventually backed by Labor, went through the last parliament which means that an override would require legislation.

Liberal senator Cory Bernardi (who lost his shadow parliamentary secretaryship because of comments he made in a parliamentary debate on gay marriage) says the government should bring in legislation. “The marriage act is a responsibility of the federal parliament. It’s wrong for states and territories to allow something that is inconsistent with Commonwealth legislation. It’s incumbent on any federal government to protect the responsibilities of the Commonwealth.”

The Australian Christian Lobby said the same sex marriage lobby was using the ACT to pursue an issue which affected the nation and was a matter for the federal parliament. It also urged action to override.

But such legislation would cause some unhappiness in Liberal ranks where is division on the same sex marriage issue.

With Labor and the Greens controlling the Senate until the end of June, such a bill would seem doomed for the time being - if the ALP had a bound vote.

But would Labor MPs be bound? Shadow attorney-general Mark Dreyfus says it would “depend on the terms of the bill – literally. If it squarely raised the same sex marriage issue we would have a conscience vote. If it was somehow more technical, we could have a party vote”.

Greens Sarah Hanson-Young is worried about the possibility of a Labor conscience vote. She called on both contenders for the ALP leadership, Anthony Albanese and Bill Shorten, to guarantee Labor would vote as a block against any attempt to override the ACT.

ACT deputy chief minister Andrew Barr, one of those in the forefront of the successful effort to have the 2011 ALP national conference change Labor’s platform to support gay marriage, told The Conversation there definitely should not be a conscience vote if there were such legislation, because the issue was the territory’s right to make its own decisions.

The other route for trying to knock out the ACT law would be a High Court challenge.

The bill applies only to people not covered by the federal marriage act, which defines marriage as between a man and a woman. The ACT some years ago had advice from Stephen Gageler, now on the High Court, that such an approach could stay within the constitution. But ultimately, no one can be sure how the court would rule.

Meanwhile Canberra is looking forward to a marriage-led boost to its pre-Christmas economy. There are no residency requirements under its proposed law. “There are a number of places around Canberra that would provide a beautiful venue for a wedding,” says Barr, who has tourism among his ministerial responsibilities.

Postscript: Gay marriage has intruded into a Labor battle over who succeeds Bob Carr when he quits the Senate. (Carr has just been re-elected for six years but is expected to leave soon – they are already dealing with the succession even before any Carr announcement. That’s Labor’s NSW right for you.)

The Australian Workers’ Union’s Paul Howes had been touted for the spot. But Howes today pulled out. Joe de Bruyn’s Shop, Distributive and Allied Employees’ Association is backing SDA-aligned Deb O'Neill, recently defeated in the seat of Robertson.

The pro-O'Neill forces are promoting her on gender grounds but Howes clearly believes his pro-gay marriage views are a factor in the opposition to him within the right. “Maybe it would have been a different kettle of fish if I had a different view,” Howes told his news conference.

Listen to the Politics with Michelle Grattan Podcast below, subscribe on iTunes or via RSS. This episode Michelle speaks to Deputy Chief Minister Andrew Barr.