FED:Marriage changes will end in court: lawyer

AAP General News (Australia)
12-07-2011
FED:Marriage changes will end in court: lawyer

By Paul Osborne

CANBERRA, Dec 7 AAP - A prominent human rights lawyer says any change to federal law
to allow gay marriage is likely to be challenged in the High Court of Australia.

Labor backbencher Stephen Jones will bring a private member's bill to parliament in
early 2012 to change the definition of marriage in the Marriage Act.

The move follows the ALP's decision last week to change its platform, to "ensure equal
access to marriage under statute for all adult couples irrespective of sex who have a
mutual commitment to a shared life".

Jesuit priest and academic Fr Frank Brennan, writing in the online magazine Eureka
Street, said he had no doubt there would be a High Court challenge if the bill passed
parliament.

"Even if the Australian parliament does legislate to expand the definition of marriage
beyond its traditional meaning in the Marriage Act, there will undoubtedly be a constitutional
challenge in the High Court given that the parliament does not have the power to expand
its legislative competence beyond the wording of the constitution," Fr Brennan wrote.

Under the constitution, the parliament has the power to "make laws with respect to marriage".

In 1991, High Court judge Daryl Dawson said the commonwealth power to legislate with
respect to marriage "is predicated upon the existence of marriage as a recognisable (although
not immutable) institution".

Justice Dawson warned: "Just how far any attempt to define or redefine, in an abstract
way, the rights and obligations of the parties to a marriage may involve a departure from
that recognisable institution, and hence travel outside constitutional power, is a question
of no small dimension."

Fr Brennan said a better approach would be for the states and territories to uniformly
legislate for civil unions.

"I would (support this) ... because I think the states should not discriminate against
couples who have a mutual commitment to a shared life whatever their sexual orientation,
while affirming that the bearing and nurturing of the children of the union is a constitutive
good of marriage even though not all marriages produce children," he said.

Queensland parliament passed civil unions legislation last week, following in the footsteps
of Victoria, Tasmania and the ACT.

The federal ALP platform change affirmed amendments to the Marriage Act would not impose
any obligation on ministers of religion to solemnise any marriage.

AAP pjo/rl/psm/

KEYWORD: GAY COURT

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