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Brandis v. Corbell in the lawyering stakes

By johnboy 10 October 2013 31

The ABC has word that the Federales are going to take the ACT Gay Marriage laws to the High Court for striking down just as soon as we make them:

The Federal Government plans to challenge ACT same-sex marriage laws in the High Court when the territory enacts legislation.

The ACT Labor Government expects the law to pass with the support of Greens MLA Shane Rattenbury when the ACT Legislative Assembly sits later this month.

If so, the first same-sex marriages could happen as early as December.

ACT Attorney-General Simon Corbell says it is disappointing that the Federal Government will be challenging the laws.

If your gay marriage in the interim gets struck down Simon’s offering a civil union.


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31 Responses to
Brandis v. Corbell in the lawyering stakes
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curmudgery 11:07 am 13 Oct 13

I’m for gay marriage. And for opposing it, the Libs should say ‘Sorry’.

chewy14 7:19 am 12 Oct 13

watto23 said :

chewy14 said :

Primal said :

PantsMan said :

If what you do in your own private life and bedroom is nothing to do with anyone else, why do you need a certificate from the ACT local council?

Because the law treats certificate holders differently in various situations.

So is the logical solution to:
a) fix the flawed certificate system or
b) makes sure one other demographic gets access to the flawed system?

Well it would be to fixed the flawed system, but that never happens in politics. The word Tax reform is always used, but no one really wants to do it, because it will upset a lot of people. Change upsets people in general.

The hope here is that the ACT will be tested by the high court. If it gets passed, Tas and NSW will follow and then we’ll probably have federal legislation.

The stupidity of the whole situation is the fact that whether a gay couple is married or not has very little implications to anyone but themselves, i’m sure there are a few areas the gov might need to pay out, but the amount of money wouldn’t be excessively big. Its only people who are homophobic that have an issue with it.

Just like the fact that some catholic neighbours in general don’t bother me, until they start to tell me i’m wrong!!

Yeah fair enough. I live in hope that one day sanity will break out amongst the populace.

I like the comparison to tax reform too, no matter how many reviews they have, nothing seems to ever change. Well change for the better anyway.

Primal 9:53 pm 11 Oct 13

chewy14 said :

So is the logical solution to:
a) fix the flawed certificate system or
b) makes sure one other demographic gets access to the flawed system?

Logical? a).

Achievable with less than a world war? b).

watto23 8:35 pm 11 Oct 13

chewy14 said :

Primal said :

PantsMan said :

If what you do in your own private life and bedroom is nothing to do with anyone else, why do you need a certificate from the ACT local council?

Because the law treats certificate holders differently in various situations.

So is the logical solution to:
a) fix the flawed certificate system or
b) makes sure one other demographic gets access to the flawed system?

Well it would be to fixed the flawed system, but that never happens in politics. The word Tax reform is always used, but no one really wants to do it, because it will upset a lot of people. Change upsets people in general.

The hope here is that the ACT will be tested by the high court. If it gets passed, Tas and NSW will follow and then we’ll probably have federal legislation.

The stupidity of the whole situation is the fact that whether a gay couple is married or not has very little implications to anyone but themselves, i’m sure there are a few areas the gov might need to pay out, but the amount of money wouldn’t be excessively big. Its only people who are homophobic that have an issue with it.

Just like the fact that some catholic neighbours in general don’t bother me, until they start to tell me i’m wrong!!

milkman 7:43 pm 11 Oct 13

Thumper said :

Gungahlin Al said :

Thumper said :

howeph said :

Thumper said :

why are we pissing into the wind on this issue?

Because it’s a matter of principle? To remove discrimination? Because it’s an election promise?

I think you’re wrong. The winds are blowing at our back on this one. It’s the Federal Government that’s pissing into the wind. The majority of Australians support marriage reform. Other state governments (NSW and Tas I think) have their own legislation in the works. Governments around the Western world have already brought in their own reforms. It’s just a matter of time.

I’m all for gay marraige.

This is a Corbell stunt. He could have introduced when Gillard was PM but that would have looked very inconvenient when she did exactly the same as the current government is about to do, that is, crush it.

I’m all for negotiations but political point scoring is not the way to go.

I disagree Thumper. I think Simon is doing this because he knows it is the right thing to do. And that’s why he also has the full support of his colleagues.

The long game will depend on the way the High Court chooses to interpret the federal legislation and its marriage definition, but it’s at least in with a chance.

It is the right thing to do. I agree.

So why didn’t he do in the previous six years?

I don’t need to answer that question as it is as obvious as sticking pins in your eyes.

Rather than being adversarial, Corbell should be lobbying sympathetic LNP members, not alienating them through sheer and most blatent political opportunism.

This is nothing more than cheapp political point scoring. Except it costs a fortune in wasted time and effort.

steveu 6:18 pm 11 Oct 13

If team Katy was truly committed to this idea, it would have been put forward in the last 3 years that their party was in power at the federal level? The fact is their party was not supportive of it, and I cant but help think this is sadly a token gesture at best.

And it will eventually reflect how ineffective our local council is when the legislation gets trounced at the federal level by both houses of federal parliament.

If anything it will be a stark reminder that perhaps the council should try and focus more on running the city, instead of pretending to try and change the world.

Im sorry to be cynical, however I think this exercise just adds to the angst that people who are passionate about this issue.

Aeek 4:51 pm 11 Oct 13

caf said :

housebound said :

Who will be the first minister (or imam or rabbi) to be dealt with for not wanting to preside over a gay wedding?

This is needless scaremongering – ministers (and priests and imams and rabbis) have had no trouble with declining to preside over the weddings of the non-religious or variantly-religious forever, so this will be no different.

not to mention there are some who are looking forward to doing same sex marriages as well. More business.

chewy14 4:35 pm 11 Oct 13

Primal said :

PantsMan said :

If what you do in your own private life and bedroom is nothing to do with anyone else, why do you need a certificate from the ACT local council?

Because the law treats certificate holders differently in various situations.

So is the logical solution to:
a) fix the flawed certificate system or
b) makes sure one other demographic gets access to the flawed system?

Thumper 3:55 pm 11 Oct 13

Gungahlin Al said :

Thumper said :

howeph said :

Thumper said :

why are we pissing into the wind on this issue?

Because it’s a matter of principle? To remove discrimination? Because it’s an election promise?

I think you’re wrong. The winds are blowing at our back on this one. It’s the Federal Government that’s pissing into the wind. The majority of Australians support marriage reform. Other state governments (NSW and Tas I think) have their own legislation in the works. Governments around the Western world have already brought in their own reforms. It’s just a matter of time.

I’m all for gay marraige.

This is a Corbell stunt. He could have introduced when Gillard was PM but that would have looked very inconvenient when she did exactly the same as the current government is about to do, that is, crush it.

I’m all for negotiations but political point scoring is not the way to go.

I disagree Thumper. I think Simon is doing this because he knows it is the right thing to do. And that’s why he also has the full support of his colleagues.

The long game will depend on the way the High Court chooses to interpret the federal legislation and its marriage definition, but it’s at least in with a chance.

It is the right thing to do. I agree.

So why didn’t he do in the previous six years?

I don’t need to answer that question as it is as obvious as sticking pins in your eyes.

Rather than being adversarial, Corbell should be lobbying sympathetic LNP members, not alienating them through sheer and most blatent political opportunism.

caf 3:31 pm 11 Oct 13

housebound said :

Who will be the first minister (or imam or rabbi) to be dealt with for not wanting to preside over a gay wedding?

This is needless scaremongering – ministers (and priests and imams and rabbis) have had no trouble with declining to preside over the weddings of the non-religious or variantly-religious forever, so this will be no different.

Thumper 2:52 pm 11 Oct 13

familydude72 said :

It will be interesting to see if Zed represents the rights of the territory on this

Zed only represents one thing.

Zed.

Gungahlin Al 2:23 pm 11 Oct 13

Thumper said :

howeph said :

Thumper said :

why are we pissing into the wind on this issue?

Because it’s a matter of principle? To remove discrimination? Because it’s an election promise?

I think you’re wrong. The winds are blowing at our back on this one. It’s the Federal Government that’s pissing into the wind. The majority of Australians support marriage reform. Other state governments (NSW and Tas I think) have their own legislation in the works. Governments around the Western world have already brought in their own reforms. It’s just a matter of time.

I’m all for gay marraige.

This is a Corbell stunt. He could have introduced when Gillard was PM but that would have looked very inconvenient when she did exactly the same as the current government is about to do, that is, crush it.

I’m all for negotiations but political point scoring is not the way to go.

I disagree Thumper. I think Simon is doing this because he knows it is the right thing to do. And that’s why he also has the full support of his colleagues.

The long game will depend on the way the High Court chooses to interpret the federal legislation and its marriage definition, but it’s at least in with a chance.

Primal 2:14 pm 11 Oct 13

PantsMan said :

If what you do in your own private life and bedroom is nothing to do with anyone else, why do you need a certificate from the ACT local council?

Because the law treats certificate holders differently in various situations.

PantsMan 1:47 pm 11 Oct 13

If what you do in your own private life and bedroom is nothing to do with anyone else, why do you need a certificate from the ACT local council?

chewy14 1:41 pm 11 Oct 13

howeph said :

chewy14 said :

… and if the government is going to move against discrimination then it should remove it against everyone, not just homosexuals. Civil unions for anyone that wants them.

I’m not sure what you mean by this.

I mean that I don’t think the government (any government) should be involved in peoples relationships at all except to handle the legal issues involved which could be solved through a civil union bill for everybody. I’m yet to hear a good reason why the goveenment should be solemnising people’s “love”.

And its disingenuous to call this bill the marriage equality bill when it really is just same sex marriage. If the issue is discrimination then we need an all encompassing bill that allows anyone of age to register a relationship(s) with anyone.

familydude72 1:37 pm 11 Oct 13

It will be interesting to see if Zed represents the rights of the territory on this

    johnboy 1:43 pm 11 Oct 13

    I think we can guess Zed will plead party unity while doing the bidding of his ecclesiastical masters.

housebound 1:27 pm 11 Oct 13

It’s a shame Corbell and Barr had to go about it this way. I can’t see any Federal government of any colour being happy to relinquish control to make laws over anything. I am a rabid decentralist, so on those ideological grounds, I say go for the challenge. Who needs uniformity on anything? Why can’t the states differ?

On the other hand, Barr has a history of total intolerance towards people who don’t agree with him – it doesn’t seem to matter what the issue is. Therefore, I am nervous about any new law he proposes and, for this one, what it will mean for freedom of religion and freedom of speech. Who will be the first minister (or imam or rabbi) to be dealt with for not wanting to preside over a gay wedding?

astrojax 12:36 pm 11 Oct 13

DJ said :

Unless I am missing something here, I can’t see how any gay couples who get married in the ACT before Tony Abbott tries to force his Christian views on Australia will have their marriages ‘invalidated’ as George Brandis says. They might be able to stop future marriages, but I’m pretty sure the courts won’t be acting as the Liberal Party’s bitch any time soon. Just saying.

They would have to introduce laws that state that people cannot get married to people of the same sex. This would possibly contravene anti-discrimination laws.

The basic argument will be that although the Commonwealth has the power to make laws as to marriage. The current wording of the Marriage Act only covers unions between a man and a woman. This leaves the States free to pass their own laws until such time as an incompatible Commonwealth law exists. Which imo no such laws currently exist, and retrospectivity would be unlikely to be enforced. The High Court had said that laws remain valid until they ruled invalid, and what is done whilst they are valid is not void ab initio.

It’s quite ingenious really. I’m surprised that the ACT will be the first to run it.

this, and the wedding dollars – go simon!

howeph 12:15 pm 11 Oct 13

chewy14 said :

Please, do you honestly believe they were waiting for the Feds? They simply didnt want to embarrass their own Federal leadership at the time.

I don’t disagree much with what you said above.

Whilst they were waiting earlier on in the term to see which way the Federal parliament would go, at the end, I agree, they did hold off so that they didn’t further embarrass the embattled Federal Labor Party in the run up to the election.

Perhaps that was to give the federal Labor party a better chance for re-election so that when the ACT parliament did bring on their legislation in the next term it would be less likely to be blocked? If so then it is an example of a perfectly legitimate use of politics and no one should be surprised if politicians engage in it.

chewy14 said :

This should really be decided at a federal level…

Yes, ideally it should. But the Feds have dropped the ball. A conservative government is in power which is highly unlikely to do anything on the issue; therefore more progressive state and territory governments have a perfectly legitimate right to act.

chewy14 said :

… and if the government is going to move against discrimination then it should remove it against everyone, not just homosexuals. Civil unions for anyone that wants them.

I’m not sure what you mean by this.

DJ 11:55 am 11 Oct 13

Unless I am missing something here, I can’t see how any gay couples who get married in the ACT before Tony Abbott tries to force his Christian views on Australia will have their marriages ‘invalidated’ as George Brandis says. They might be able to stop future marriages, but I’m pretty sure the courts won’t be acting as the Liberal Party’s bitch any time soon. Just saying.

They would have to introduce laws that state that people cannot get married to people of the same sex. This would possibly contravene anti-discrimination laws.

The basic argument will be that although the Commonwealth has the power to make laws as to marriage. The current wording of the Marriage Act only covers unions between a man and a woman. This leaves the States free to pass their own laws until such time as an incompatible Commonwealth law exists. Which imo no such laws currently exist, and retrospectivity would be unlikely to be enforced. The High Court had said that laws remain valid until they ruled invalid, and what is done whilst they are valid is not void ab initio.

It’s quite ingenious really. I’m surprised that the ACT will be the first to run it.

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