Court rules out ACT’s marriage equality, conscience vote urged

The Australian Marriage Equality (AME) is calling for a federal conscience vote following a High Court’s ruling on Thursday quashing the Australian Capital Territory’s (ACT) Marriage Equality Act.

ACT enacted a same sex marriage law in October, Australia’s first state ever to pass the highly-debated legislation; but the said court ruled out its validity. The state law did not meet the provisions under the Commonwealth Law.

AME Deputy Director Ivan Hinton-Teoh and Chris Hinton-Teoh are among the first couples who got married last week in Canberra. (Photo: AME)

Twenty-seven couples from the GLTB community tied the knot in Canberra last week hoping the court will uphold their vows.  The ruling dashed their honeymoon on Thursday.

AME is now pressing for a new legislation through a conscience vote. National Director Rodney Croome said in a press release today the federal government has indicated that it is possible to legislate a new law on marriage equality through a conscience vote. He said the possibility has been indicated by Liberal leader, Malcolm Turnbull.

A separate press release also said four Liberal state premiers support the federal Coalition’s conscience vote, including Barry O’Farrell (NSW), Denis Napthine (VIC), Colin Barnett (WA) and Campbell Newman (QLD). The press release said the premiers have all urged the federal parliament to deal with the issue.

Croome added “if Coalition leaders as conservative as Colin Barnett can see the importance of a marriage equality conscience vote, Tony Abbott has no excuses”.

“With four Liberal premiers telling Abbott that community attitudes are changing and a marriage equality conscience vote is a no-brainer he’d be unwise not to listen.”

AME Deputy Director Ivan Hinton-Teoh, who married his husband, Chris Hinton-Teoh, under the overturned ACT law, said that in the absence of a timetable for federal reform the states and territories should continue to endeavour to allow same-sex couples to marry.

The federal Labor Party allows a conscience vote on marriage equality. Prime Minister Tony Abbott has earlier said a Coalition conscience vote is a matter for the Coalition party room to decide.


Ashleigh Watson and Narell Majic who got married this week comfort each other after the High Court ruling. (Photo: AME)

 ACT Government

The ACT Government is disappointed with the ruling and pledged to re-legislate for civil unions but not same-sex marriage.

The High Court cannot uphold the ACT same sex marriage law as it lacks the validity of marriage defined under Commonwealth Law.

Marriage Act of 1961 provides provision for the union of man and woman. This provision defines marriage.

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The Court held that “marriage” in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. “Marriage” in s 51(xxi) includes a marriage between persons of the same sex.

The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia. That Act is a comprehensive and exhaustive statement of the law of marriage.

Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.

The Court held that the whole of the ACT Act is of no effect. Read HERE

State Legislations

Bills drafted on state levels should be worked out to meet the provision of the Commonwealth Law. Same-sex marriage bills have been tabled in five states but overturned. WA drafted the latest bill yesterday. At Federal level, same sex legislations have been scheduled for deliberations, but similarly voted down.

The GLTB believes the issue is now at a tipping point. It is just a matter of time while the concept of morality itself is radically shifting.

Gays, lesbians can’t wait to tie the knot in Canberra

Gays and lesbians cannot wait to tie the knot in Canberra following the passage of a marriage equality bill last Tuesday.

The Australian Capital Territory (ACT) Legislative Assembly passed the historic Marriage Equality (Same Sex) Bill 2013 —the first state is Australia to legalize same sex marriage.

ACT makes historic marriage equality law, NSW will follow. (Photo: Australian Marriage Equality)

Euphoria engulfed the LGBTI (lesbian, gay, bi-sexual, transgender, intersex) community but this was cut short when the Tony Abbott Government lodged a High Court challenge within 24 hours saying the ACT law is not consistent with the Commonwealth marriage law.

Commonwealth Marriage Act 1961 establishes the sole and exclusive means under Australian law by which the status of marriage may be attained. Family Law Act 1975, likewise, makes provisions for divorce, child custody, and property arrangement. The ACT law does not meet such provisions.

The Commonwealth government has lodged a writ of summons in the High Court Wednesday. The High Court will hold its first reading on Friday.

The ACT Government is determined to defend the new law. Members of the GLTBI community also stand hand in hand and optimistic to withstand the challenge.

The lobby group, Australian Marriage Equality, has already put up a separate website to gather gays and lesbians who would like to take the opportunity to be amongst the first to tie the knot.

On its Facebook page, it said “Despite this we know that many couples are not going to wait.  We’re compiling a fact sheet for couples interested in being amongst the first to tie the knot. You can sign up here.”

Abbott earlier warned not to rush until the validity of the law is determined as the writ also states  “There would be immediate adverse effects for persons whose marriages would be ineffective if the ACT Marriage Act is found invalid” and “The status of marriage has a weight and a significance beyond its legal consequences.”

Abbott said he views the ACT same-sex marriage laws as a constitutional matter, not a moral issue.  Advising same-sex couples wishing to marry in the ACT to wait until a High Court challenge is resolved, Abbott said the federal government had constitutional responsibility for marriage.

ACT Attorney-General Simon Corbell introduced a raft of eleventh hour amendments to the Marriage Equality (Same-Sex) Bill 2013 in order to bolster its chances of surviving a High Court challenge. The amendments are aimed at fending off the High Court challenge by minimising any inconsistency with commonwealth legislation.

The bill is supported by Greens (Member of Legislative Assembly) MLA Shane Rattenbury and all eight Labor MLAs.

ACT Chief Minister Katy Gallagher has hoped same-sex couples will be able to marry in Canberra before the end of the year.

Meanwhile, the New South Wales Legislative Council is now planning to introduce a similar bill. AME, in its website said the” NSW Cross Party Marriage Equality Working Group consisting of Liberal, National, Greens, Labor and Independent Members have announced plans to introduce legislation into the NSW Legislative Council next week that seeks to allow same-sex couples to marry in NSW.”

Gay marriage faces an uphill battle

Legalising same sex marriage faces a big hurdle in Parliament taking into consideration the big divide in Australian society at the crossroad of conservatism and change.

More than 3,000 advoccates of gender equality march into the Victorian Parliament House to protest the 8-year ban on marriage equality. (Photo: Equal Love)

Debates on marriage equality resumed Tuesday with deliberation that went overnight through Wednesday. At noon, Marriage Amendment Bill 2012 sponsored by Labor’s Stephen Jones was defeated, 42-98, at the Lower House. Both Prime Minister Julia Gillard and Opposition Leader Tony Abott voted against the bill.  See AAP’s report who voted for and against HERE.

Four bills are before the federal Parliament – the Marriage Amendment Bill 2012, the Marriage Amendment Bill (No.2) 2012, the Marriage Equality Amendment Bill 2012 and the Marriage Equality Amendment Bill 2010.

Senator Penny Wong with partner Sophie Allouache and baby daughter Alexandra. (Photo: The National Times)

The bills seek to amend the Marriage Act 1961 allowing same-sex marriages to be recognised while placing no obligation on a minister of religion to solemnise a same-sex marriage. The Marriage Amendment Bill 2012 is sponsored by Adam Brandt from the Australian Greens and Andrew Wilkie, an Independent representative from Denison, Tasmania. The proposed amendment suggests to remove discriminatory references based on sexual orientation and gender identity and to allow marriage regardless of sex, sexual orientation or gender identity.

The other bill, Marriage Equality Amendment Bill 2010 No.  2010 , sponsored by another Greens Senator Hanson-Young, is an Act to create the opportunity for marriage equality for people regardless of their sex, sexual orientation or gender identity, and for related purposes.

The Marriage Act 1961 defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.

At the state level, the Tasmanian House of Assembly passed the Same-Sex Marriage Bill on August 30, 2012 and is now to be considered by the Tasmanian Legislative Council. The Premier of South Australia has declared his support for marriage equality at the state level as has the Australian Capital Region (ACT) Government.

Gillard, un-wedded and atheist, stands aloof to the issue. She once said two people can love and commit to each other without being married. Gillard, at 50, has a partner but has no wedding plans. Abbott is neither supportive to the civil union of gays and lesbians. He admitted he is old-fashioned and he, thus, believes that marriage should be a union between a man and a woman.

The Sydney Mardi Grass is the largest gay festival in Australia. (Photo: Today)

Last night, Liberal Senator Cory Bernardi expressed fear that legalising same sex marriage will redefine marriage paving the way to bestiality and polygamy. He said the bills are attack to “our enduring institutions.” His remarks backfired creating furor among gay and lesbian groups and supporters. He later announced his resignation today saying ”My focus is now on directing my time and energy to representing the people of South Australia as a Liberal senator,” Fairfax Media quoted him as saying.

Pressures from gay and lesbian groups have been mounting and the Parliament cannot escape the issue. Over 3,000 gays marched in Melbourne to protest the 8-year ban on the “state-sanctioned discrimination” last week. In a demonstration of defiance, about 40 couples were wedded and officiated by a Catholic priest– Father Greg Reynolds. The priest has already gained notoriety from opening a church of dissident Catholics that welcomes ‘‘every man and his dog’’ – including gays and lesbians. Reynolds has overseen the wedding of couples who lack the legal right to marry under Australian law.

Reacting to the defeat of the Labor-sponsored bill, Equal Love Convener Ali Hogg said the voting down of the bill is an insult to to the LGBTI people.

   “The voting down of this bill is an insult. It is an indictment of both major parties, neither of which have proven themselves allies of LGBTI people. We might expect nothing better from the Liberals, who have been happy to promote lunatic bigots like Corey Bernadi through their ranks for years, but the fact that the ALP has also failed to throw its weight behind equal rights, and has instead helped to maintain homophobic discrimination as law, is nothing less than shameful.”

Equal Love has already announced a future rally to be held on November 24. “We call on all supporters of equality to continue to pressure all sides of politics to vote in favour of equality in the upcoming marriage amendment bills.”

A catholic church is Sydney now accepts gays and lesbians into its congregation. (Image:

Despite the concerted efforts of the multi-sectarian groups to discourage same gender marriage, a few traditional churches have somehow managed to accept this major shift. Acceptance, for example, is a faith community supporting gay, lesbian, bisexual and transgender (GLBT) Catholics, their family and friends. It has been running for almost four decades.

By providing a safe, spiritual and social environment, through Acceptance, many GLBT  Catholics have found reconciliation with their faith and sexuality.

Parents, Families, Friends of Lesbians and Gays (PFLAG) Victoria is another peak body of a voluntary organisation in support of gays and lesbians, who meet once a month to offer support and friendship to families – particularly parents – and to members of the gay, lesbian, bisexual, transgender and intersex community who may need support in coming out.

Countries that support same sex marriages (Photo: Google)

The Australian Human Rights Commission said civil marriage is a human right available to all without discrimination.

Commission President Gillian Trigg, in a statement, said the fundamental human rights principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.

“The parliamentary vote on marriage equality this week gives federal Parliament the opportunity to take another step towards equality for people who are discriminated against on the basis of their sexual orientation, sex and/or gender identity,” Professor Triggs said.

Releasing a Commission position paper on marriage equality ahead of this week’s parliamentary vote on the issue, she said that removing the prohibition on civil marriage for same-sex couples was the next step toward legislative equality with opposite-sex couples. Read the Commission’s position paper on marriage equality HERE.  The positiion paper points out that:

Australia has legal obligations to protect and promote human rights including those encompassed in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR includes the principles of equality and non-discrimination. The United Nations Human Rights Committee has concluded that the ICCPR does not prevent the recognition of same-sex marriage, rather the ICCPR does not impose a positive obligation on states to do so.

Equality is a key human rights principle. It is set out in article 26 of the ICCPR, which states that all people ‘are equal before the law and are entitled without any discrimination to the equal protection of the law’. Article 2 of the ICCPR requires State Parties to ensure all individuals are to enjoy the rights set out in the ICCPR without discrimination.

Amsterdam, The Netherlands legalised the world’s first gay marriage in 2001. (Photo: Robin Utrech/AFP/Getty Images/Washington Post)

Canada also legalised the civil union of gays and lesbians under the Civil Marriage Act in 2005. (Photo: Phill Snel/Getty Images/ Washington Post)

The countries now fully recognising same-sex marriage include Argentina, Belgium, Canada, Denmark, Iceland, Mexico, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden, and several states in the USA. A marriage equality bill has passed its first reading in the New Zealand Parliament, and the Scottish and French Governments have also indicated they will introduce marriage equality bills.

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