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Simon’s screwed the pooch. High Court throws out Marriage Equality

By johnboy 12 December 2013 150

high court

As expected the High Court has ruled against Simon Corbell’s gay marriage laws.

Will he have the decency to resign?

More to come.


Shane Rattenbury says it’s up to the Federales now:

ACT Greens Member for Molonglo, Shane Rattenbury has called on the Federal Government to now legislate for an end to marriage discrimination after the High Court has ruled the ACT’s Marriage Equality Bill unlawful.

“Today’s ruling from the High Court was about legal technicalities – it was not about the morality, the common sense or the human importance of ending marriage discrimination,” said Mr Rattenbury.

“Attorney General George Brandis indicated that the Federal Government challenged the ACT’s legislation in the High Court for constitutional reasons rather than moral opposition.

“Now that the High Court has made the constitutional issues clear, the Greens call on the Abbott Government to do what is right both constitutionally and morally, and legislate an end to marriage discrimination, something the majority of Australians want to see.

Fat chance of that from this government but if Labor wants to make too much of it they really should make it party platform.


UPDATE: The High Court’s judgment summary is now available:

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.


FURTHER UPDATE: Simon Corbell is applauding his own leadership and hoping for a warm fuzzy out of the Liberals:

The ACT Government has urged the Federal Government to ensure equality for all Australians, after a disappointing outcome in the High Court, which ruled today that the Marriage Equality (Same Sex) Act 2013 is invalid, Attorney-General, Simon Corbell, said.

Mr Corbell said the Prime Minister should now allow a conscience vote on same sex marriage in the Federal Parliament.

“Now is the time for a national debate on this issue as we witnessed the joy of those couples that have been married since Saturday, when the first weddings took place under the ACT Government’s law.

“The High Court has ruled that the Commonwealth Act is a comprehensive and exhaustive statement of the law of marriage, therefore states and territories are unable to legislate for same sex marriage.”

Mr Corbell said the ACT had shown leadership by passing laws for same sex marriage.


Simon unapologetic for the colossal waste of time, effort and people’s lives:


Andrew Barr talking big:


The Greens are pushing again for a conscience vote:


Perhaps the greatest sin of all, Simon has brought joy to the Australian Christian Lobby:

The Australian Christian Lobby has welcomed the High Court’s decision to reject the ACT’s same-sex marriage laws.

Managing Director Lyle Shelton said the ruling upholds uniformity of marriage laws across the country.

“The ACT’s “marriage” laws were inconsistent with the federal laws and incapable of concurrent operation,” he said.

“This ruling shows it is not the jurisdiction of states to legislate in regards to marriage,” Mr Shelton said.

“It’s important for marriage laws to continue to be administered federally – this is why the Marriage Act was passed in 1961 to have uniform marriage laws,” he said.


In the Canberra Times Crispin Hull is trying to paint it as a win for marriage equality as marriage is now defined as possibly applying beyond the hetero norm.

This correspondent is not convinced any Commonwealth marriage equality laws would ever have faced serious threat on that front, but if it brings someone some joy then that’s something out of this mess.


This from one of those who got married:


Canberra’s Labor members are calling on Tony Abbott to think again:

We are very disappointed with the decision by the High Court to strike out the territory’s same-sex marriage law.

This is a grim day for those same-sex couples that took advantage of the ACT’s ground-breaking legislation and tied the knot since Saturday.

We commend ACT Labor on its efforts to advance the cause of equality.

We also respect the decision of the High Court.

The Prime Minister must now deliver on his pledge that the Liberal Party room will revisit the question of whether to have a conscience vote on same-sex marriage.

The Abbott Government chose to mount this legal challenge at a cost to taxpayers when this is an inherently political decision that should be decided in the Federal Parliament.

[Photo by Josh]

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Simon’s screwed the pooch. High Court throws out Marriage Equality
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vet111 10:27 am 17 Dec 13

IrishPete said :

vet111 said :

I am a lawyer, and you are so far off the mark it’s not funny. My eyes hurt from reading that absolutely appalling interpretation of the Constitution, with complete disregard for anything other than the literal interpretation of a single provision. Please, allow me to educate you.

s51 lists the matters which the Commonwealth parliament may legislate for. The states have legislative authority for anything that is not listed in s51.

The scope of matters in s51 has been interpreted quite broadly by the High Court. In addition, in some matters the states may agree to the Commonwealth becoming involved in certain matters, and the Commonwealth may pass model legislation for adoption by the states. In other matters, as the Commonwealth has responsibility for distributing funding for matters for which the state has authority, it may choose to set conditions on that funding, which may take the form of legislation.

s109 provides that where a state passes a law that is inconsistent with a Commonwealth law, that state law is invalid to the extent of the inconsistency. As per the above, the Commonwealth cannot pass a law that it does not have the legislative authority for, as granted under s51. This preserves the Commonwealth’s power under the Constitution.

s122 provides that the Commonwealth may make laws for the territories. Each territory is established under a Commonwealth Act (known as a self-government act). The Commonwealth is not limited to making laws for the territories only for those matters listed in s51. In addition, self-government acts generally include a safety mechanism to prevent the states doing things it doesn’t agree with, and the self-government act will allow for the Governor-General to disallow a territory law that has been passed.

IP, you come on here and claim superiority over comment on mental health matters because you are qualified in that field. Allow me to do the same here, and humbly suggest that if you don’t know what you’re talking about, you should refrain from posting. It’s irresponsible and it makes you look silly.

I stopped reading when your third para said “interpreted”, since presumably everything after that point is an interpretation.

Actually, you used the term “interpretation” in the first paragraph (twice), so I should have stopped there.

Any law that needs to be interpreted is poorly written. You don’t have to be a lawyer to know that. In fact you probably have to not be a lawyer to know that. Badly written law lines lawyers’ pockets, yet it was written by lawyers. Go figure.

IP

Funnily enough, the rest of my email was telling you what the Constitution provides for – no interpretation necessary.

I think it’s very sad that you would rather remain ignorant than at least attempting to use this opportunity to educate yourself. I’m not going to cover why interpretation is so important – many others have done so in this thread in a much more eloquent manner.

Just because you disagree with the way something works, doesn’t mean it doesn’t actually work that way. But please, feel free to remain with your head in the sand and tell us all why you’re right, without listening to why you’re so wrong.

bigfeet 10:45 pm 16 Dec 13

IrishPete said :

You’re kidding? An Act to tell you how to interpret other Acts?

S15AA says: “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”

And we needed an Act to tell us that? Is there another telling us to move our feet sequentially rather than simultaneously when walking?

No. There isn’t. But let’s imagine there was such a law.

How would that Act work for people with one leg? Or no legs? What if you had two legs but one didn’t work? Or you were born with two working legs but later lost one in an accident? Or for religious reasons you could only use your left leg on Tuesdays? What about a prosthetic limb…does that constitute a ‘leg’ by definition of this Act?

No law can cover all circumstances and they all may need interpretation at some time.

I’m sure you are an expert in some field (mental health I think someone said earlier). I’m sure you expect people to believe you in that area.

How about you defer to the experts in this field.

Blen_Carmichael 10:14 pm 16 Dec 13

LadyxBec said :

I agree that if she waited just to avoid embarrassing Julia Gillard that’s poor form. However I don’t believe that our fearless leaders (of any stripe) value the constitution as much as you seem to think they do.

I don’t recall saying that. I do recall saying that the Commonwealth Attorney-General has a duty to see to it that state/territory laws in breach of section 109 of the Constitution are repudiated to the extent of the inconsistency. The motivation in any federal government taking action along those lines usually has little to do with ideology and a lot to do with patch protection.

LadyxBec said :

There are numerous examples of unconstitutional laws and actions by all levels of government.

Examples please?

LadyxBec said :

In this, as in all other things I am inclined to believe they do what they think will best help them get re-elected.

You don’t say?

LadyxBec said :

There’s no reason they couldn’t have let someone else take it up, if other groups objected.

That’s all very nice. In the Machiavellian world of politics, however, that sort of happy-go-lucky approach will quickly invite contempt and encroachment. Over the years the Federal and State governments have frequently litigated against the other over s109 disputes and claims that the Federal Parliament was enacting legislation ultra vires. If the Federal Government didn’t take action over such a blindingly obvious breach of s109, it would simply encourage other jurisdictions to muscle in on this and other heads of power within s51. In this matter the Federal Government had a choice between appearing like ruthless bastards or appearing pathetically weak. Can’t blame them for choosing the former.

IrishPete 9:41 pm 16 Dec 13

c_c™ said :

Mysteryman said :

It’s too bad you didn’t stop posting after you stopped reading.

The constitution was designed to be open to interpretation – a “living document” that can be amended and interpreted as times change and successive generations comes and go. Interpretation is the role of the High Court. And it works pretty well.

Definitely, not to mention he’s obviously unaware that the law requires the interpretation of legislation, specifically it requires an interpretation that best achieves the purpose of the act.

Someone get this old codger a copy of the Acts Interpretation Act of 1901 and highlight s15AA.

You’re kidding? An Act to tell you how to interpret other Acts?

S15AA says: “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”

And we needed an Act to tell us that? Is there another telling us to move our feet sequentially rather than simultaneously when walking?

Surely the Acts Interpretation Act of 1901 is satire, injected into AUSTLII by The Chaser? I was blissfully unaware of its existence, and my faith in humanity (or politicians and lawyers) has not been increased by the bursting of that particular bubble of naivety.

Did it never cross anyone’s mind, in 1901 or since, to actually write legislation that says what it means and means what it says, rather than requiring endless interpretations and fine legal argument (and yes I mean “fine” in the sense as wine – expensive)? It isn’t rocket science. It really isn’t.

IP

IrishPete 8:32 pm 16 Dec 13

c_c™ said :

IrishPete said :

I stopped reading when your third para said “interpreted”, since presumably everything after that point is an interpretation.

Actually, you used the term “interpretation” in the first paragraph (twice), so I should have stopped there.

Any law that needs to be interpreted is poorly written. You don’t have to be a lawyer to know that. In fact you probably have to not be a lawyer to know that. Badly written law lines lawyers’ pockets, yet it was written by lawyers. Go figure.

IP

oh christ, all this time I thought you were just uninformed about law, but you’re really just trolling.

Funnily enough, no, I am not trolling. One should not need to consult a lawyer to know whether it is legal to cross a road at a particular place and time. Laws are written, generally, for observance by non-lawyers, therefore they need to be comprehensible by non-lawyers. A radical concept perhaps, but a sensible one nonetheless. Examine the qualifications of MPs, and then stop wondering about why such a sensible concept would not be pursued by politicians.

IP

c_c™ 7:57 pm 16 Dec 13

Mysteryman said :

It’s too bad you didn’t stop posting after you stopped reading.

The constitution was designed to be open to interpretation – a “living document” that can be amended and interpreted as times change and successive generations comes and go. Interpretation is the role of the High Court. And it works pretty well.

Definitely, not to mention he’s obviously unaware that the law requires the interpretation of legislation, specifically it requires an interpretation that best achieves the purpose of the act.

Someone get this old codger a copy of the Acts Interpretation Act of 1901 and highlight s15AA.

IrishPete 7:55 pm 16 Dec 13

Mysteryman said :

It’s too bad you didn’t stop posting after you stopped reading.

The constitution was designed to be open to interpretation – a “living document” that can be amended and interpreted as times change and successive generations comes and go. Interpretation is the role of the High Court. And it works pretty well.

Can you provide a reference, please, for that statement about the Constitution being designed to be open to interpretation?

I’ll ignore the “it works pretty well” statement as simply an opinion. S127 probably hung around for rather too long…

IP

Thumper 7:55 pm 16 Dec 13

IrishPete said :

vet111 said :

I am a lawyer, and you are so far off the mark it’s not funny. My eyes hurt from reading that absolutely appalling interpretation of the Constitution, with complete disregard for anything other than the literal interpretation of a single provision. Please, allow me to educate you.

s51 lists the matters which the Commonwealth parliament may legislate for. The states have legislative authority for anything that is not listed in s51.

The scope of matters in s51 has been interpreted quite broadly by the High Court. In addition, in some matters the states may agree to the Commonwealth becoming involved in certain matters, and the Commonwealth may pass model legislation for adoption by the states. In other matters, as the Commonwealth has responsibility for distributing funding for matters for which the state has authority, it may choose to set conditions on that funding, which may take the form of legislation.

s109 provides that where a state passes a law that is inconsistent with a Commonwealth law, that state law is invalid to the extent of the inconsistency. As per the above, the Commonwealth cannot pass a law that it does not have the legislative authority for, as granted under s51. This preserves the Commonwealth’s power under the Constitution.

s122 provides that the Commonwealth may make laws for the territories. Each territory is established under a Commonwealth Act (known as a self-government act). The Commonwealth is not limited to making laws for the territories only for those matters listed in s51. In addition, self-government acts generally include a safety mechanism to prevent the states doing things it doesn’t agree with, and the self-government act will allow for the Governor-General to disallow a territory law that has been passed.

IP, you come on here and claim superiority over comment on mental health matters because you are qualified in that field. Allow me to do the same here, and humbly suggest that if you don’t know what you’re talking about, you should refrain from posting. It’s irresponsible and it makes you look silly.

I stopped reading when your third para said “interpreted”, since presumably everything after that point is an interpretation.

Actually, you used the term “interpretation” in the first paragraph (twice), so I should have stopped there.

Any law that needs to be interpreted is poorly written. You don’t have to be a lawyer to know that. In fact you probably have to not be a lawyer to know that. Badly written law lines lawyers’ pockets, yet it was written by lawyers. Go figure.

IP

So, even when you clearly haven’t got a clue, you are still right?

Hilarious.

8

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