Gay marriage an early test for Abbott

johnboy 20 September 2013 41

By Michelle Grattan, University of Canberra

boats and gays

Tony Abbott had hoped he wouldn’t be confronted with the gay marriage issue for quite a while. Now, just a day after the new government’s swearing in, it’s potentially posing a major challenge for him.

The ACT government introduced legislation today to legalise same sex marriage there. It will be passed next month.

Does the Coalition government let it be, or try to overrule it?

Abbott declared today: “Obviously the ACT is entitled to do what it wants within the law …. the Attorney [George Brandis] will be seeking legal advice on precisely how far the ACT can go on this”; he added that “under the constitution the Commonwealth has responsibility for marriage.”

If the government wants to go down the override path it could be fraught for both sides of politics.

Once it was just a stroke of a ministerial pen. But a Greens bill, eventually backed by Labor, went through the last parliament which means that an override would require legislation.

Liberal senator Cory Bernardi (who lost his shadow parliamentary secretaryship because of comments he made in a parliamentary debate on gay marriage) says the government should bring in legislation. “The marriage act is a responsibility of the federal parliament. It’s wrong for states and territories to allow something that is inconsistent with Commonwealth legislation. It’s incumbent on any federal government to protect the responsibilities of the Commonwealth.”

The Australian Christian Lobby said the same sex marriage lobby was using the ACT to pursue an issue which affected the nation and was a matter for the federal parliament. It also urged action to override.

But such legislation would cause some unhappiness in Liberal ranks where is division on the same sex marriage issue.

With Labor and the Greens controlling the Senate until the end of June, such a bill would seem doomed for the time being – if the ALP had a bound vote.

But would Labor MPs be bound? Shadow attorney-general Mark Dreyfus says it would “depend on the terms of the bill – literally. If it squarely raised the same sex marriage issue we would have a conscience vote. If it was somehow more technical, we could have a party vote”.

Greens Sarah Hanson-Young is worried about the possibility of a Labor conscience vote. She called on both contenders for the ALP leadership, Anthony Albanese and Bill Shorten, to guarantee Labor would vote as a block against any attempt to override the ACT.

ACT deputy chief minister Andrew Barr, one of those in the forefront of the successful effort to have the 2011 ALP national conference change Labor’s platform to support gay marriage, told The Conversation there definitely should not be a conscience vote if there were such legislation, because the issue was the territory’s right to make its own decisions.

The other route for trying to knock out the ACT law would be a High Court challenge.

The bill applies only to people not covered by the federal marriage act, which defines marriage as between a man and a woman. The ACT some years ago had advice from Stephen Gageler, now on the High Court, that such an approach could stay within the constitution. But ultimately, no one can be sure how the court would rule.

Meanwhile Canberra is looking forward to a marriage-led boost to its pre-Christmas economy. There are no residency requirements under its proposed law. “There are a number of places around Canberra that would provide a beautiful venue for a wedding,” says Barr, who has tourism among his ministerial responsibilities.

Postscript: Gay marriage has intruded into a Labor battle over who succeeds Bob Carr when he quits the Senate. (Carr has just been re-elected for six years but is expected to leave soon – they are already dealing with the succession even before any Carr announcement. That’s Labor’s NSW right for you.)

The Australian Workers’ Union’s Paul Howes had been touted for the spot. But Howes today pulled out. Joe de Bruyn’s Shop, Distributive and Allied Employees’ Association is backing SDA- aligned Deb O’Neill, recently defeated in the seat of Robinson.

The pro-O’Neill forces are promoting her on gender grounds but Howes clearly believes his pro-gay marriage views are a factor in the opposition to him within the right. “Maybe it would have been a different kettle of fish if I had a different view,” Howes told his news conference.

Listen to the Politics with Michelle Grattan Podcast below, subscribe on iTunes or via RSS. This episode Michelle speaks to Deputy Chief Minister Andrew Barr.

Michelle Grattan does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

The Conversation

This article was originally published at The Conversation.
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41 Responses to Gay marriage an early test for Abbott
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milkman milkman 3:10 pm 22 Sep 13

Jim Jones said :

Seriously, the amount of people using the ‘this is a waste of time, they should be doing more important things’ argument is laughable. It’s a transparent rhetorical ruse, and a pretty piss-poor one at that.

The introduction of same sex marriage legislation in the assembly took all of 15 minutes – the legislation was drawn up long ago and the sitting spent most time on issues that no-one has bothered to mention (probably because they’re tedious and socially unimportant).

Can you walk and chew gum at the same time?

And yet I suspect a little more than 15 mins has been spent on scheming, planning and generally jerking around when it really is a matter for the feds.

Comic_and_Gamer_Nerd Comic_and_Gamer_Nerd 1:02 pm 22 Sep 13

Jim Jones said :

miz said :

Nothing wrong with a civil union – most people who think they are getting ‘married’ are actually having a civil union.

Lol.

Who told you that?

More than likely some moron priest who thinks Jesus invented marriage.

Jim Jones Jim Jones 10:42 am 22 Sep 13

miz said :

Nothing wrong with a civil union – most people who think they are getting ‘married’ are actually having a civil union.

Lol.

Who told you that?

Jim Jones Jim Jones 10:40 am 22 Sep 13

Seriously, the amount of people using the ‘this is a waste of time, they should be doing more important things’ argument is laughable. It’s a transparent rhetorical ruse, and a pretty piss-poor one at that.

The introduction of same sex marriage legislation in the assembly took all of 15 minutes – the legislation was drawn up long ago and the sitting spent most time on issues that no-one has bothered to mention (probably because they’re tedious and socially unimportant).

Can you walk and chew gum at the same time?

Comic_and_Gamer_Nerd Comic_and_Gamer_Nerd 8:28 am 22 Sep 13

Darkfalz said :

IrishPete said :

Surely gay women on boats would terrify the Prime Minister even more?

Or gay women on boats who believe in Climate Change?

IP

Strange that you need to project this filth on a man with a gay sister and a long time friend who is a transsexual, but keep it up. Says more about you than anyone else.

What filth?

You are really grasping with this comment.

watto23 watto23 7:45 pm 21 Sep 13

Darkfalz said :

Holden Caulfield said :

When did equality revert back to being a fringe issue?

It’s not “equality”. It’s making a special exception for one particular kind of relationship, ignoring other particular kinds of relationships which are also not the norm.

And yes, it is fringe. The Greens vote dropped to 8% this election, and probably 90% of that was in the low information and low life experience 18-30 bracket. It didn’t even rate a mention as an issue on exit polls.

I find it surprising that Labor are even talking about conscience vote. If this goes to federal parliament, the argument should be about the territory’s right (or lack thereof) to exercise laws which are contrary to federal ones, not personal opinions on gay marriage. We had that vote last September.

Again explain to me the difference between a gay couple now with or without kids living next door or nearby vs one in the exact same situation but married as well.

How does this affect you, other than it does not fit your belief system? This is where any challenge in the high court will be a problem, because someone will need standing and the ACL for example will have a hard time proving that the law affects them.

And the vote has nothing to do with any one issue. The NBN was 50-50 among coalition voters and 80-20 among Labor Coalition voters, but yet, the coalition won, so a large number of voters decided the coaltion NBN plan was ok to get rather than say the Labor plan for another issue.

I certainly don’t agree 100% with what any party does and it/or what policies it has. So to say Coalition getting in was a vote against something is not the case.

wildturkeycanoe wildturkeycanoe 7:21 pm 21 Sep 13

voytek3 said :

Diggety said :

voytek3 said :

If you have an opinion on this meaningless, obsolete, useless and stupid “tradition” you shouldn’t have been allowed to vote in the recent election. Anyone or anything dumb enough to want to get married should be allowed to do so. If you think otherwise – you are wrong.

Asylum seekers – the other total non issue used to get votes from morons. Process them onshore and be done with it. This, like “gay marriage” is a complete and utter non issue that was used to get votes from stupid people. The fact that these are main “issues” to people is testament to just how dumb the average person is in this pathetic country.

Just started uni, eh?

Is there anything more laughable than a person that views other people who are educating themselves in a negative light? You are exact type of person I originally referred to – the dumbest of the dumb. To answer your question – no I’m not at university.

voytek3 said :

If you have an opinion on this meaningless, obsolete, useless and stupid “tradition” you shouldn’t have been allowed to vote in the recent election. Anyone or anything dumb enough to want to get married should be allowed to do so. If you think otherwise – you are wrong.

Asylum seekers – the other total non issue used to get votes from morons. Process them onshore and be done with it. This, like “gay marriage” is a complete and utter non issue that was used to get votes from stupid people. The fact that these are main “issues” to people is testament to just how dumb the average person is in this pathetic country.

So, what [in your opinion] is a real issue that is worthwhile? NBN? Foreign debt? Unemployment? If this issue is important enough to be all over the news and people have made their electoral voting decisions based on this issue, it is no more stupid than voting for the sex party because you want fireworks. We all have our own agenda and it isn’t wrong just because you say so. If I didn’t care less about our foreign debt, why would my vote be worth less than yours because I wanted to get a speedway in Canberra? Obviously the stupid people have some sway in things or we’d not be going down this road. This is democracy, get used to it.

You totally miss the point. I cannot be bothered with you.

You can’t be bothered with me because I just showed you up? How about making the point a little simpler then instead of rambling on with statements such as “If you have an opinion…you shouldn’t have been allowed to vote”. Then to infer anyone who considers gay marriage and asylum seeker policy as main issues being “dumb”, “wrong”, “stupid” or “a moron” lowers your own intellect to an even further rung on the ladder of life. To finish off your comment by calling Australia a pathetic country only beckons me to utter the famous quote from a certain bogan Youtube classic “Get outta me country, it’s full”. You my dear person are one who should not be here at all, let alone be allowed to vote in the decision making of our great nation.
I’ve finished with you, it’s not worth the effort of making any replies to further dribble from your PC, else my “stupid” intellect is dragged deeper into the vile world of your id.

miz miz 10:53 am 21 Sep 13

My view about this issue is:
1. Gay relationships already have equality before the law (next of kin, superannuation, etc). Nothing wrong with a civil union – most people who think they are getting ‘married’ are actually having a civil union. I therefore cannot fathom why on earth persons in a gay relationship would want to get ‘married’ in a church that does not want them. It is just silly to try to legislate for a semantic preference and/or force a religious institution to accept your worldview.
2. Given that this whole exercise will be overridden by the feds, it is a complete waste of the ACT Govt’s time and energy, and our resources. I would far prefer they spent those resources on improving some of the clearly below-par services we endure, eg improving waiting times in Emergency, maintaining our run down suburban parks, fixing the thousands of potholes from the rain, etc.

IrishPete IrishPete 7:48 pm 20 Sep 13

By the way, the irony of an ALP poster targeting Tony Abbott on asylum seeker boats, was not lost on me. And Julia Gillard didn’t support marriage equality either.

IP

joingler joingler 7:29 pm 20 Sep 13

Gungahlin Al said :

joingler said :

c) As was hinted in the article, is the ACT government doing this in the hope of attracting tourists (like that episode in The Simpsons?

If it does, there is a problem where exactly? Noosa businesses have been a roaring annual trade in pink dollars after every Mardi Gras.

I’m not opposed to taking tourists dollars. But if the tourist money is the main reason for the law change then it is pretty shallow of our government.

Fair answers on the other two but you ignored the other question

IrishPete said :

joingler said :

d) Does anyone else find it slightly ironic that the Christian lobby as well as Sarah Hanson-Young are both opposed to a conscious vote?

Freudian slip? I think you mean conscience vote. I doubt any of the votes in the federal parliament are conscious.

IP

Yes, Feudian slip. Thanks 🙂

Masquara Masquara 7:07 pm 20 Sep 13

I disagree that it’s much of a test for Abbott. He is far too pragmatic these days. He’ll just argue the barest legals around it and sideline it as an issue. He also won’t be too fussed if gay marriage goes ahead on consitutional/legal OKing on federal legal advice. A success in the ACT would actually work somewhat to his advantage as he could shrug his shoulders and say “out of my hands”! I must say, with Katie Gallagher supporting an increase in the GST rate, while I support gay marriage I don’t think it should be the main topic at the moment.

Darkfalz Darkfalz 6:57 pm 20 Sep 13

Holden Caulfield said :

When did equality revert back to being a fringe issue?

It’s not “equality”. It’s making a special exception for one particular kind of relationship, ignoring other particular kinds of relationships which are also not the norm.

And yes, it is fringe. The Greens vote dropped to 8% this election, and probably 90% of that was in the low information and low life experience 18-30 bracket. It didn’t even rate a mention as an issue on exit polls.

I find it surprising that Labor are even talking about conscience vote. If this goes to federal parliament, the argument should be about the territory’s right (or lack thereof) to exercise laws which are contrary to federal ones, not personal opinions on gay marriage. We had that vote last September.

Darkfalz Darkfalz 6:51 pm 20 Sep 13

IrishPete said :

Surely gay women on boats would terrify the Prime Minister even more?

Or gay women on boats who believe in Climate Change?

IP

Strange that you need to project this filth on a man with a gay sister and a long time friend who is a transsexual, but keep it up. Says more about you than anyone else.

LSWCHP LSWCHP 5:22 pm 20 Sep 13

IrishPete said :

Surely gay women on boats would terrify the Prime Minister even more?

Or gay women on boats who believe in Climate Change?

IP

You’re missing the point mate. Gay women on boats who believe in Climate Change and want to enter federal cabinet are what really has Mr A. shaking in his boots. 🙂

dtc dtc 4:08 pm 20 Sep 13

Chop71 said :

Michelle,

What happens if someone else decides to challenge it all the way to the High Court?
That way it may still be knocked down and yet it wouldn’t be Tony or the Liberals who did it?
It could be a church or a guy called Fred.

Chop

I’m sure any reasonable court (ie a court that doesnt want to make a decision on the substantive claim) will find there is an issue of ‘standing’ if Fred brought the case. While its arguably entirely appropriate for an individual to bring a claim that a law is unconstitutional, if that person is not affected by the law in any way recognised by the law, then a court might just throw them out. Not liking a law is certainly not sufficient to create standing. Of course, potentially the ACT would not argue this point because the case is going to be brought at some stage.

The constitutional issue with marriage is quite interesting. If marriage under the constitution only means male/female, then the ACT law is entirely constitutional (although can be overthrown under the Territories power) because the Feds dont have the power to pass law re same sex marriages (the Feds only have the powers expressly given by the constitution, everything not mentioned is with the states).

If the constitution definition of ‘marriage’ includes same sex marriages, then there are several competing arguments. One is that the Feds have defined marriage to mean man/women (potentially the ACT law is inconsistent), but then also its arguable that the Feds havent mentioned same sex marriage so there is no inconsistent law (there is no law that says ‘same sex marriages’ are illegal, there is just no law that says they are legal – hence a state/territory can say they are legal without being inconsistent, at least until they are formally illegal).

But, even more fun, if the Constitutional definition of marriage includes same sex marriage (which is the only basis upon which the ACT law can potentially be struck down), then all those people who claim same sex ‘marriage’ is redefining what is meant by marriage are legally wrong…because marriage in fact actually does mean same sex marriage.

So opponents have to either accept that the Feds do not have power over same sex marriage (thus the Territory law is valid), or that the definition of marriage in the constitution includes same sex marriage and the basis of their arguments is wrong.

Of course, anyone who thinks people arguing against same sex marriage are doing so on a semantic point are kidding themselves. We all know its a recently latched upon code for ‘I just dont like what those fellas do behind closed doors’.

chewy14 chewy14 4:07 pm 20 Sep 13

voytek3 said :

Roksteddy said :

voytek3 said :

If you have an opinion on this meaningless, obsolete, useless and stupid “tradition” you shouldn’t have been allowed to vote in the recent election. Anyone or anything dumb enough to want to get married should be allowed to do so.

Asylum seekers – the other total non issue used to get votes from morons. Process them onshore and be done with it. .

So, you have an opinion on these issues… which means…….

They aren’t “issues” and I am merely pointing out facts.

Facts? Have you been talking to Comic and Gamer Nerd about the difference between facts and opinions again?

IrishPete IrishPete 4:02 pm 20 Sep 13

joingler said :

d) Does anyone else find it slightly ironic that the Christian lobby as well as Sarah Hanson-Young are both opposed to a conscious vote?

Freudian slip? I think you mean conscience vote. I doubt any of the votes in the federal parliament are conscious.

IP

IrishPete IrishPete 3:59 pm 20 Sep 13

Surely gay women on boats would terrify the Prime Minister even more?

Or gay women on boats who believe in Climate Change?

IP

Chop71 Chop71 3:38 pm 20 Sep 13

Michelle,

What happens if someone else decides to challenge it all the way to the High Court?
That way it may still be knocked down and yet it wouldn’t be Tony or the Liberals who did it?
It could be a church or a guy called Fred.

Chop

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