Same sex marriage is an issue that has received quite a deal of publicity in recent times.
On Tuesday, October 24, 2013, the ACT Legislative Assembly passed the Marriage Equality Act.
The next day, the Commonwealth Government commenced proceedings in the High Court of Australia asserting that the new ACT law was inconsistent with the Commonwealth Marriage Act and therefore in breach of the Constitution.
In short summary, the key constitutional issue is whether the ACT law is inconsistent with the Commonwealth law in its definition of marriage. The Commonwealth law defines marriage as being between a man and a woman. If the laws are held by the High Court to be inconsistent they will probably be deemed to be in breach of the Constitution.
When the ACT Government introduced its Bill into the Legislative Assembly for consideration, it explained the Bill as being one that would allow couples who cannot legally marry under the Commonwealth law to enter into a marriage regardless of their sex.
It was explained that under the ACT proposal a person could marry if they were an adult, and not already married, and they were otherwise prohibited from marrying their proposed spouse under the Commonwealth Law.
The ACT Government took the view that its law engaged rights protected under the Commonwealth Human Rights Act providing that everyone has a right to recognition as a person, that everyone has a right to enjoy his or her human rights without discrimination, and that everyone is equal before the law and entitled to the equal protection of the law without discrimination.
It was noted that the Human Rights Act does not expressly provide for recognition of same sex marriage, however, the ACT Government argued that principles of equality should apply to same sex couples in the same way as they apply to opposite sex couples.
The Commonwealth Marriage Act clearly defines marriage to mean "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."
Therefore the differences between the ACT law and the Commonwealth law are obvious.
In NSW the Government is about to grapple with its own similar legislation.
The Parliament received for consideration last Thursday the Same Sex Marriage Bill. This proposed law is different to the ACT law in that it will seek to create an entirely separate category of marriage, ie a "same sex marriage". The argument is that the Commonwealth Marriage Act deals only with marriage for opposite sex couples. The NSW plan is to create a new and separate category of marriage for same sex couples, as opposed to redefining the existing concept of marriage. It is thought that the NSW approach will avoid the problem of inconsistency with the Commonwealth Legislation.
A wise old man once said to me that a wise old man once said to him, "I like cats and I like dogs but I would not put them in the same cage together." I would say the same applies to putting a cat and cat in the same cage, and a dog and a dog for that matter.
To me, this whole same sex marriage issue is starting to look like something the cat dragged in and a bit of a dog's breakfast.
Whiteley Ironside and Shillington