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I just stumbled across this link: http://www.crikey.com.au/2011/06/14/the-gillard-government%E2%80%99s-anti-gay-marriage-policy-goes-global.

In order to get married overseas, Australian citizens must have been issued a ‘Certificate of No Impediment from the Cth Government. The Howard Government refuses to issue such certificates to gay Australians wishing to enter same sex marriages overseas . The Gillard Government continues this policy.

My first thought on reading this was wondering whether you could sue the Government under administrative law (for losses caused for cancelling weddings etc and for a mandatory injunction). Unfortunately, it seems like CNIs aren’t issued under any Australian law, so you can’t simply sue the Cth under a prerogative writ. It is issued at the request of foreign governments, so I think it is an ordinary legal power that comes with legal personhood (like the power to enter into contracts etc). Because they’re refusing to give such a certificate, its not like you can sue them for defamation either.

Plus, because the Marriage Act denies recognition to foreign gay marriages, there is an argument that Australia’s consular officials are dutybound to not recognise the proposed gay marriages as  marriages either. I, naturally, disagree with that argument (if only for the reason that the Marriage Act is phrased in the past tense). I wonder if you could seek a declaration that this is the case.

 

 

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