The ACT Government is gearing up for a fight with the Federal Government over the impending introduction of territory legislation for marriage equality in the Legislative Assembly. This follows confirmation last week by the federal Attorney-General, Senator the Hon George Brandis QC, that the Federal Government will challenge the law in the High Court as soon as it is passed.

The Marriage Equality Bill 2013 was introduced to a standing ovation in the public gallery of the Legislative Assembly in September. It is expected to pass the Legislative Assembly in the October sitting period as all eight Labor MLAs and the one Greens MLA will support it. The bill provides for both Canberra residents and interstate visitors to be married in the ACT. ACT Leader of the Opposition Jeremy Hanson has stated that the ACT Liberals’ opposition to the bill is not opposition to gay marriage, but is due to marriage being a federal responsibility.

ACT Attorney-General Simon Corbell issued his opening salvo to the Federal Government by stating that any ”attempts to stymie, block or prevent reform will only lead to an even greater impetus for it”.

Brandis’s and the Commonwealth’s position is that marriage laws should be consistent across Australian states and territories and further, that it was solely constitutionally the domain of the Federal Government. Brandis cited the legal opinion of the Commonwealth Solicitor-General in support of his position. However, Corbell asserted proof of legal opinions from constitutional law experts that it was possible for the ACT to proceed in their action.

Senator Brandis further requested that the ACT Government delay passage of the bill until its constitutionality was assured by the High Court. However, this request was denied by the Labor Chief Minister, Katy Gallagher.

The ACT has historically been a trailblazer for LGBT relationship legislative reform. In 2006, the ACT Legislative Assembly passed a bill legalising civil unions for same-sex couples, the first jurisdiction in Australia to do so. However, the Commonwealth overturned the law using the executive powers which then existed to overrule Territory legislation. Since the passage of 2010 legislation pursued by then-Greens leader Bob Brown, Territory legislation is no longer subject to simple overrule by the Federal Government and must instead be challenged in the High Court or by the vote of both houses of Federal Parliament.

Several other state governments are also independently pursuing legislation on marriage equality within their own jurisdictions. New South Wales’s same-sex marriage bill served as the model for the ACT’s and has been drafted, awaiting introduction into NSW Parliament with cross-party support. Furthermore, a report from the Tasmanian Institute of Law Reform stated that there was no legal impediment for that state or others to enact marriage laws independent of the Commonwealth. However, Constitutional norms dictate that when state/territory and Commonwealth laws conflict, the Commonwealth legislation takes precedence.