Gay marriage in NSW/Australia (1 Viewer)

[Generator]

Re: Homosexuality in Australia

Govt seeks to override ACT civil union law
Bob Brown angered by Govt attempt to scuttle civil union law

 

[robo-andie]

I saw that one Sunrise this morning.
It is bloody ridiculous. The government can't tell the states and territorities that they are the ones who decide those sorts of things, and then fight them because they don't agree with them!

It's wrong.

 

[Some_Guy]

Others though, including Opposition leader Kim Beazley are more wary about sticking up for the civil union law.

KIM BEAZLEY: We will take a careful look at what the ACT has come out with and we'll determine our position on the basis of that analysis.

what analysis is needed?

Anyway screw Howard and horray for being able to vote now! I just wish we had a better Opposition party.
​

 

[Silver Persian]

Beazley said he'll support the ACT legislation just now...which will be exactly...zero help ._.

Do you think the government would allow a conscience vote on this? :doubtful:

 

[xeuyrawp]

Ok, can someone explain this to me?

I'd say I have a pretty good understanding of how this works, but how does an Australian State or Territory challenge national legislation? There is the mention of the Governer-General - but as if he's going to block the Act, when the Liberal government was rightfully elected with their views known...

 

[TerrbleSpellor]

Ok, can someone explain this to me?

I'd say I have a pretty good understanding of how this works, but how does an Australian State or Territory challenge national legislation? There is the mention of the Governer-General - but as if he's going to block the Act, when the Liberal government was rightfully elected with their views known...

Don't you know, captain law?

 

[Some_Guy]

Ok, can someone explain this to me?

I'd say I have a pretty good understanding of how this works, but how does an Australian State or Territory challenge national legislation? There is the mention of the Governer-General - but as if he's going to block the Act, when the Liberal government was rightfully elected with their views known...

Its not like Howard is the grand emperor of this country and he and his liberal cronies control us with an iron fist.

 

[kami]

Ok, can someone explain this to me?

I'd say I have a pretty good understanding of how this works, but how does an Australian State or Territory challenge national legislation? There is the mention of the Governer-General - but as if he's going to block the Act, when the Liberal government was rightfully elected with their views known...

The Howard government hasn't legislated, at least thats what it says in the provided article:

The route the Prime Minister has taken, which is not to legislate - he knows that it will be far more difficult and contentious - but he's going to regulate and that means that the regulations can be disallowed in either House of Parliament, within 15 days of entry to that House.

Kerry Nettle on behalf of the Greens will move disallowance in the Senate and that means there will be a vote following a debate.

Judging by that, I think the ACTs current tactic against this, is pretty much to nag someone with more clout to help them. Though I imagine in other more severe situations they could take the Commonwealth to the Supreme Court - I really doubt that'd be at all effective here.

 

[xeuyrawp]

Don't you know, captain law?

Mature as always, Hayden. I thought police training was supposed to force people to grow up?

The Howard government hasn't legislated, at least thats what it says in the provided article:

I know that, the GG realistically only acts under the PM's advice, or, rarely, blocks a bill from passing (symbolically by not signing it). In this case, the GG would recognise that, inarguably, the Australian people elected the current federal government knowing its stance on gay marriage.

Judging by that, I think the ACTs current tactic against this, is pretty much to nag someone with more clout to help them. Though I imagine in other more severe situations they could take the Commonwealth to the Supreme Court - I really doubt that'd be at all effective here.

Nagging...?

And what've the Supreme Courts got to do with it? Legislation > ... > ... > Supreme Court of X State/Territory.

 

[kami]

Nagging...?

And what've the Supreme Courts got to do with it? Legislation > ... > ... > Supreme Court of X State/Territory.

Nagging ie the ACT basically is getting people or offices with the authority it doesn't have, to act for them. Except they don't have the authority or right to compell those people/offices to act. And so they must ask, wheedle, whinge, negotiate, whatever.

As for the courts, my bad, I meant the High Court of Australia.

 

[xeuyrawp]

Nagging ie the ACT basically is getting people or offices with the authority it doesn't have, to act for them. Except they don't have the authority or right to compell those people/offices to act. And so they must ask, wheedle, whinge, negotiate, whatever.

Hmm, I see.

As for the courts, my bad, I meant the High Court of Australia.

Ah, ok sorry - I should have assumed that's what you meant... I think Supreme Court is the highest court in the US, England and Wales, and Canada. For some reason, we get 'High' (when it really should be 'Highest' or something less confusing).

That being said, the High Court generally goes by legislation. If someone wanted to stop this act in the High Court, they'd have to mount a case based on a Constitutional claim (I think? - Moonlight?). I think a judicial review claim, which is what this would be, still has to be brought to the court. I don't think a review for constitutionality happens internally...

Maybe someone who's actually done constitutional law can correct me.

 

[MoonlightSonata]

Ok, can someone explain this to me?

I'd say I have a pretty good understanding of how this works, but how does an Australian State or Territory challenge national legislation? There is the mention of the Governer-General - but as if he's going to block the Act, when the Liberal government was rightfully elected with their views known...

Normally, a State or Territory simply brings an application in the original jurisdiction of the High Court.

However, in this case the Governor-General (effectively the government) is exercising a power under s 35 of the ACT Self-Government Act which allows the GG to disallow an enactment within 6 months of it being made.

The ACT is a special case and obviously under the constitution the states do not have such fetters (although State legislation is invalid if it is inconsistent with valid Commonwealth legislation under s 109 of the constitution).

 

[poloktim]

I know that, the GG realistically only acts under the PM's advice, or, rarely, blocks a bill from passing (symbolically by not signing it). In this case, the GG would recognise that, inarguably, the Australian people elected the current federal government knowing its stance on gay marriage.

One could argue that the population of the ACT voted for the Labor government in their Legislative Assembly knowing that they would enact this law. Perhaps appealing this matter to the GG could prove to be troublesome to the Government. However I sincerely doubt it. The GG generally takes advice from the PM, and if the PM advises him to repeal the ACT's laws based on the ACT Self Government Act, then as far as I know, his hands are tied. So ultimately, I think you're right, the GG will act in the interests of Australia, which is believed to be the views of the government that was voted in by Australians, regardless of how residents of the ACT or Jervis Bay feel. Unfortunate as it is, I doubt there's room for Stanhope's government to fight.

Perhaps the ACT should attempt to achieve statehood. The wording of the constitution is confusing to say the least, so I'll paste the clause I think would benefit and let people interpret it for themselves.

124. A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.
Source: http://www.aph.gov.au/senate/general/constitution/chapter6.htm

(although State legislation is invalid if it is inconsistent with valid Commonwealth legislation under s 109 of the constitution).

I'm curious. The creation of a civil union law in NSW mimicking that of the ACT's law would only really be recognised in NSW, wouldn't it? The federal government has explicitally stated its views on same-sex marriage, and included in law that marriages performed overseas will not be recognised. I don't do law, and I don't understand much about it, but couldn't the NSW government still create such a law constitutionally? The only drawback would be that it is recognised only in NSW, wouldn't it?

 

[MissSavage29]

I'm curious. The creation of a civil union law in NSW mimicking that of the ACT's law would only really be recognised in NSW, wouldn't it? The federal government has explicitally stated its views on same-sex marriage, and included in law that marriages performed overseas will not be recognised. I don't do law, and I don't understand much about it, but couldn't the NSW government still create such a law constitutionally? The only drawback would be that it is recognised only in NSW, wouldn't it?

- this sounds like one of our APL questions -

oh the ability for the law to apply outside NSW
that would depend on whether they intended it to apply outside NSW - generally the laws do not have extraterriotrial effect (thus they only apply in the state that made them) it would depend how (assumily it would be the High Court that would have to determine it) whether they considered the NSW legislation to have effect outside of NSW

I dont believe the fact that the Cth has stated certain veiws on same-sex marriages would effect the NSW legislation applying outside the state unless they had created some form of legislation against it - which then would override the NSW law anyway and make it invalid...


um on the validity of such a law being passed in NSW

it would depend on how the government/ courts read s51 of the Consitution -

They could argue that the hypothetical NSW law would be invalid for consituional reasons under s51 which gives to Commonwealth legislative powers of marriage [s51(xxi) Commonwealth Consitution]

but then again it would depend on the terminiology used in such legislation - if they were doing what the ACT was doing and calling it a 'civil union' instead it would depend on how the courts interpreted the word marriage


Just as a side note to that -
unless i've completly got that whole thing above wrong - if you were advising the Cth Government wouldn't you advise them to mount a claim that the law was invalid under s51 of the Consitution then - considering that terriorty law has to also be consistant with the Consitution

 

[Some_Guy]

Sweet jesus! what language is everyone talking in??
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[crazyhomo]

Re: Gay marriage in NSW

http://www.crooksandliars.com/2006/06/07.html#a8614

 

[poloktim]

Just as a side note to that -
unless i've completly got that whole thing above wrong - if you were advising the Cth Government wouldn't you advise them to mount a claim that the law was invalid under s51 of the Consitution then - considering that terriorty law has to also be consistant with the Consitution

I think the ACT Self Government Act allows the GG to repeal a law set out by the ACT parliament within six months of the law being instated on advice from the federal government. Therefore there is no need to challenge the constitutionality of the ACT Civil Unions Act, which would involve a costly and drawn out High Court battle, when the government has the relatively simple task of telling the GG to do the dirty work.

 

[Generator]

Commonwealth wins gay union ban

 

[poloktim]

Commonwealth wins gay union ban

It's kind of unfair for the people of ACT. They voted for Stanhope knowing he would introduce these laws. The Federal Member for Canberra is a member of the Opposition. But c'est la vie, I guess.

It is amusing that the government likes to back up their ban with "it's not a homophobic sentiment." It sure sounds like a case of "I'm not racist, but..." to me.

 

[MissSavage29]

It's kind of unfair for the people of ACT. They voted for Stanhope knowing he would introduce these laws. The Federal Member for Canberra is a member of the Opposition. But c'est la vie, I guess.

It seems that, that would raise some federalist issues having the Cth intervine on state law like that when they haven't got their own legislation on it - especially since its a liberal government intervining in labour governments laws.