Gay marriage ban could be challenged: lawyer

August 15, 2004 - 12:09PM

There may be grounds to challenge new laws banning gay marriage in Australia, an expert on Australia's constitution said today.

Parliament on Friday passed a bill defining marriage as the union of a man and a woman and banning the recognition of overseas same-sex marriages.

The Equal Rights Network, a coalition of gay rights advocates, has engaged lawyers to examine a High Court challenge to the laws.

University of NSW Professor George Williams told AAP today the challenge would be difficult because Australia did not have a bill of rights to protect citizens from discrimination.

Prof Williams said another barrier was the fact that a section of the Constitution gave the Commonwealth the power to legislate with respect to marriage.

''But normally determining what marriage is and the scope of that constitutional term is a matter for the High Court and not parliament,'' Prof Williams said.

''Ironically, one of the ways they might be able to argue is marriage in the Constitution does not include same-sex marriage and therefore the Commonwealth can't legislate about it.

''Legally, if they could say the Commonwealth only has the power to deal with heterosexual marriage this law could go beyond that.''

But Prof Williams said even if the court challenge were successful it might result in the states being given power over marriage, rather than federal parliament.

With regards to the ban on recognition of gay marriages formalised overseas, he said any challenge would be unlikely to succeed as the federal government regulated such matters through its external affairs powers in the Constitution.

''That would likely support regulation with regard to overseas marriage and overseas adoptions (by gay couples),'' he said.

Australian Marriage Equality, a national group formed to campaign for gay marriage, has called on Governor-General Michael Jeffery to withhold royal assent to the legislation.

''The lesbian, gay, bisexual and transgender community must and will continue to fight until full marriage equality is achieved,'' spokesman Luke Gahan said.