Professor George Williams, a constitutional law expert at the University of New South Wales, advised legislators in the territory to change the wording of the bill to withstand any challenge from the Commonwealth.
He told
RN Breakfast that while he expects the law has a reasonable prospect of surviving a constitutional challenge, more could be done to mitigate the risk.
‘The amendments they’ve proposed I think are good,' Mr Williams told
Breakfast.
‘They’ve essentially made a judgement call... they think they’ve done enough.
‘I personally hope they’re right, but certainly from my point of view I would have liked to have seen them do a little bit more to maximise the chances of success.’
The bill was renamed in recent days, with the original title, the ‘Marriage Equality Bill’, changed to the ‘Marriage Equality Same-Sex Bill’.
Mr Williams' advice relied on the assumption that the High Court would find the Federal Marriage Act applies only to heterosexual couples, meaning the ACT marriage laws should seek to cover only same-sex marriages.
‘It’s a technical legal change,' Mr Williams said.
‘The original approach in the ACT bill was essentially to allow people to marry who just aren’t covered by federal laws. You need to do it separately, independently, and as a result you need to set up your own special form of same-sex marriage.
‘We know the ACT has the power to do this. In a federation, the states and the territories as well as the Commonwealth can pass laws on this, so it’s a shared responsibility. The only question is one of inconsistency.’
http://www.abc.net.au/radionational...-marraige-bill-from-federal-challenge/5037000