Victorian Election '18
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Victorian Election '18
Pages tagged "High Court Challenge"
CEO of Scripture Union Queensland comments on High Court Challenge ruling
· June 24, 2014 10:00 AM
Peter James is the spokesperson for the National Schools Chaplaincy Association and CEO of Scripture Union Queensland, one of the defendants in the recent High Court challenge about the school chaplaincy program. He spoke to the ACL's Katherine Spackman about the ruling which struck down the funding arrangements of the program. He says there may be an avenue for states to fund the program.
Scripture Union's Peter James discusses High Court challenge hearing into chaplaincy
· May 13, 2014 10:00 AM
Peter James is the CEO of Scripture Union Queensland. In this interview with the ACL's Katherine Spackman he discusses the hearings held in Canberra from the 6th to the 8th of May into the school chaplaincy program. It's the second time the school chaplaincy program has being challenged in the High Court. The commonwealth government funds school chaplains in more than 3000 schools across the country.
Scripture Union Queensland's Peter James discusses upcoming High Court challenge
· April 29, 2014 10:00 AM
Peter James is the CEO of Scripture Union Queensland. In this interview with the ACL's Katherine Spackman he discusses the upcoming High Court Challenge into the National School Chaplaincy program. It's the second High Court Challenge. Hearings are set down for May 6th to 8th.
High Court hears ACT same-sex marriage law case
· December 05, 2013 11:00 AM
The High Court heard the ACT same-sex marriage case on Tuesday, December 3rd, reserving its decision until December 12. ACL’s Research Officer Daniel Simon attended the hearing and reports on the arguments presented.
The Commonwealth argued that the ACT’s same-sex marriage law, passed in October and taking effect on December 7, is invalid because it is inconsistent with the Commonwealth Marriage Act 1961. Under the Australian Constitution, the federal government has the power to legislate for marriage. The Constitution also says that any state or territory law inconsistent with a federal law is invalid.
In its arguments, the Commonwealth, represented by Solicitor-General Justin Gleeson SC, made two main points: the uniformity of marriage law in Australia, and the intention to define marriage as the union of a man and a woman.
One law for Australia
Firstly, marriage is a federal power because this allows for one uniform law throughout the country. Prior to 1900, the separate colonies had different laws governing marriage and divorce. A similar situation existed, and still exists today, in the United States. Wanting to avoid what they called this “mischief”, the founders deliberately gave the federal parliament the power to make laws for marriage, which they did with the 1961 Act.
In the words of Mr Gleeson, the need to avoid the problems of diverse marriage laws was “at the heart of the very case for Federation itself”.
The intention to define marriage as between a man and a woman
The second main theme in the Commonwealth’s arguments was that the Commonwealth has clearly shown its intention that marriage in Australia be limited to the union of a man and a woman. This was assumed in the original Act but made clear in the 2004 amendments, which inserted a definition and also expressly prohibited the recognition of same-sex relationships formalised overseas.
In response, the ACT argued that the Commonwealth law only regulates opposite-sex relationships, and that it is open to the states to confer the status of “marriage” onto same-sex couples. The ACT also argued that although the intention was clear, the text of the Marriage Act as amended does not expressly prohibited the formalising of same-sex marriages in Australia.
The High Court also allowed submissions from Australian Marriage Equality (AME), represented by Mr Kirk SC, who argued that the ACT law creates a new and distinct status, not “marriage” but “same-sex marriage”. The ACT – and any state or territory – has the right to do this, they argued, because the federal law only deals with the status “marriage” as defined in the Act.
The potential for other statuses of marriage
The Court drew two important points out of the ACT and AME arguments.
Firstly, after some probing questions from Chief Justice French and Justice Bell, AME had to admit that, based on its argument, a state or territory could legislate a new status of marriage for any type of relationship, including those currently prohibited by the federal Marriage Act. Such relationships include those where one or both parties are a child, or already married to somebody else, or where true consent is not given, or where the parties are related.
The fallacy of “equality”
Secondly, it was exposed just how shallow the claim of “equality” is.
Justice Bell asked the ACT’s solicitor Ms Eastman SC whether a same-sex couple married in the ACT would be “married” for the purposes of any Commonwealth laws which deal with married couples – such as the Evidence Act, which allows a person not to be compelled to give evidence against their spouse in a criminal matter.
Ms Eastman replied that “for Commonwealth laws, they are not recognised as married”.
In the words of Justice Bell, the ACT Act gives “a somewhat limited quality to equality”.
It is not known how the Court will rule next Thursday. It may decide the ACT Act is totally invalid, totally valid, or something in between. Despite the uncertainty, some same-sex couples are planning to wed under the new law on the weekend, even though they may be left without the legal recognition they thought they gained.
Based on legal advice the ACL has received, it seems there are strong grounds for the Court to reject the ACT bill as unconstitutional.
There is a clear case for the importance of a single marriage law for the whole of Australia. Moreover, it was the clear intention of our elected federal parliament to define marriage in Australia as between a man and a woman.
The transcript of the hearing is available
An audio-visual recording is available
The submissions from each party are available
The case was heard before the full bench of the High Court, with the exception of Justice Gageler, who was recused, most likely because of an advice he gave as a private lawyer to the ACT Government regarding their civil union laws in 2006.
The Commonwealth Government's arguments were presented by Commonwealth Solicitor-General Mr Justin Gleeson SC.
The ACT Government's arguments were presented by ACT Solicitor-General Mr Paul Garrisson SC and Ms Kate Eastman SC.
AME was allowed by the Court to make oral and written submissions as an
, or “friend of the court” – a party not connected with the case but with arguments which may assist the Court with their decision. They were represented by Mr Jeremy Kirk SC.
High Court hearing into ACT Marriage Equality Same-Sex bill begins tomorrow
· October 24, 2013 11:00 AM
The High Court hearing into the ACT’s Marriage Equality Same-Sex Bill is expected to begin tomorrow after the Commonwealth lodged a writ of summons in the High Court challenging the law. The federal government says the bill is inconsistent with the Commonwealth Marriage Act and the Family Law Act. It’s requested the High Court to expedite a hearing into the legislation.
ABC News is reporting
a judge has listed the matter for hearing tomorrow afternoon. Earlier today
The Canberra Times reported
on the writ, which includes a proposed timeline for the matter to be heard. It sets out a one or two day hearing of the full court as early as November 26.
“The Commonwealth contends that the proceeding should be heard at the earliest possible date, to reduce or avoid the uncertainty that will hang over the validity of the ACT Marriage ACT," the writ says. "That uncertainty is exacerbated to the extent that persons may wish to enter into marriages under the ACT Marriage Act before its validity is determined.”
The ACT’s Chief Minister Katy Gallagher and Attorney-General Simon Corbell continue to defend the ACT bill saying it has a high chance of surviving. Legal advice prepared for the ACL suggests the bill is inconsistent with the constitution.
It was heartening to see statements come from church community around Australia this week. On Monday a
was released by a group of Abrahamic Faith Leaders of Canberra affirming the traditional concept of marriage between a man and a woman. Canberra Pastor Brian Medway spoke to SBS Australia for its news report on Tuesday asking why the ACT government had failed to consult church leaders and the community on the legislation. Monsigner John Woods, Administrator of the Catholic Archdiocese of Canberra and Goulburn, had an
opinion piece published in The Canberra Times
on Wednesday arguing marriage is about difference not sameness.
The ACL has been involved in the marriage debate for many years and will continue to advocate for marriage between a man and a woman. It provides a natural, timeless and sustainable foundation for our society. The Commonwealth Marriage Act did not invent marriage, rather it recognises and protects something that has existed since the beginning of history.
Marriage serves as the best, most stable environment where society can nurture and protect its next generation. Marriage and family are intrinsically linked to human existence and human flourishing. This is not to say that single people don't contribute to society. Instead it merely recognises that every child owes their existence to a mum and a dad.
Furthermore, redefining marriage has religious liberty implications. The ACT government has continued to say that religious freedoms are protected under this legislation – that no minister of religion will be required to solemnise a marriage, nor will any church or place of worship be required to host a ceremony. However, this fails to acknowledge that there's no stopping an action being taken against a minister under the Discrimination Act or Human Rights Act as churches are generally public places.
ACL's MD Lyle Shelton on the political spot about high court challenge to ACT's gay marriage bill
· October 14, 2013 11:00 AM
Lyle Shelton is the Managing Director of the Australian Christian Lobby. In this interview with the ACL's Katherine Spackman he discusses the federal government's intention to challenge the ACT government's Marriage Equality Bill in the high court.
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