Govt challenge over marriage will test jurisdictions

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It is important that the status of marriage is uniform across the country, says leading leading Constitutional Law expert, Prof Greg Craven, Vice Chancellor of the Australian Catholic University, reports C-Mail.

His comments follow the Federal Government's announcement earlier this month of its intention to challenge the ACT legislation on same-sex marriage even though the Bill has not yet been passed. The legislation will be challenged in the High Court despite the fact the Commonwealth has jurisdiction over the territories and can overrule laws made by the ACT or the Northern Territory under Section 102 of the Constitution.

The High Court of Australia will decide whether Commonwealth law can overrule states or territories on same sex marriage

Australia's founding fathers gave the Commonwealth power over marriage to ensure no matter where a couple was married within Australia, their marriage would be legally recognised by every other state or territory, says Professor Craven.

"More than a century later, the same principle still applies," he says and points out that in all likelihood the Commonwealth's early legislators understood the difficulties that could arise if a couple married in Melbourne, for example, moved to Perth only to find their marriage was not recognised there and that different laws applied.

"Clearly it is important that the status of marriage is uniform across the country," he says. He also emphasises that this is a principle that goes way beyond the issue of same-sex marriage that has dominated some state parliaments, including NSW, Tasmania and South Australia in recent years and is currently before the ACT's Legislative Assembly and expected to become law in the ACT before the end of the month.

FULL STORY Govt challenge will test federal jurisdictions (C-Mail)