The federal government has confirmed it will challenge the ACT’s same-sex marriage laws in the High Court as soon as they are passed.
Attorney-General George Brandis described the territory laws on Thursday as “a threat” to the “well-established position” that marriage laws should be nationally consistent and were the domain of the Commonwealth.
Senator Brandis informed the ACT government of the legal challenge in a phone call on Wednesday night before confirming the move at a meeting of state and territory attorneys-general on Thursday.
The ACT government has vowed to “robustly defend” its laws, which are expected to pass at the October sitting of the ACT Legislative Assembly.
The Commonwealth will ask for an expedited High Court hearing and has called on the ACT government not to give effect to its laws until their constitutional validity is tested.
“It would be very distressing to individuals who may enter into a ceremony of marriage under the new ACT law, and to their families, to find that their marriages were invalid,” Senator Brandis said.
Senator Brandis said the advice of the acting Commonwealth Solicitor-General was that the ACT’s marriage equality bill was invalid because it was inconsistent with the Commonwealth Marriage Act.
“Irrespective of anyone's views on the desirability or otherwise of same-sex marriage, it is clearly in Australia’s interests that there be nationally consistent marriage laws,” Senator Brandis said.
“At the moment, the Commonwealth Marriage Act provides that consistency … The ACT's proposed law is a threat to that well-established position.
“It has been understood for more than half a century that there is a single Commonwealth law governing marriage in Australia.
“The Abbott Government believes that that should continue to be the case.”
ACT Attorney-General Simon Corbell said on Thursday “I’m not surprised but I’m disappointed that there is a failure to acknowledge that this fundamental matter of inequality needs to be addressed”.
“Attempts to stymie, block or prevent reform will only lead to an even greater impetus for it,” he said.
Mr Corbell said there “are still battles to be fought” and reiterated the ACT government’s intention to “robustly defend our law in the court”.
“The Commonwealth have confirmed … that they will be commencing legal proceedings in the High Court once our laws become operational,” Mr Corbell said.
“They argue it’s inconsistent … I indicated the territory’s view, legal advice and the advice of other constitutional law experts differed from that and we will be robustly defending our law in the court.”
Mr Corbell said Coalition-aligned state and territory governments had indicated they would support the Commonwealth’s position.
He said that included NSW, whose same-sex marriage bill served as the basis for the territory’s legislation.
Mr Corbell said the Commonwealth would assert that its view of marriage covers all aspects of that matter and that it was not open to states and territories to legislate for same-sex marriage.
“We assert that our bill is capable of concurrent operation and is therefore not inconsistent,” Mr Corbell said.
The ACT government's bill is expected to pass the 17-member Legislative Assembly this month with the support of all eight Labor members and Greens minister Shane Rattenbury.
Chief Minister Katy Gallagher took to Twitter to confirm the ACT would not wait for a High Court determination before enacting same-sex marriage laws once they are passed.