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High Court to consider Government's challenge -

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EMMA ALBERICI, PRESENTER: The High Court could hear the Commonwealth's legal case against the ACT's controversial new same-sex marriage law before any planned nuptials actually take place. The Federal Government is expected to argue before the High Court that the new law should be struck down because it conflicts with the existing Commonwealth Marriage Act.

Karen Tan reports.

KAREN TAN, REPORTER: It's been an emotional roller coaster for same-sex couples in the Australian Capital Territory. First, the joy and jubilation of the ACT's marriage equality same-sex bill on Wednesday.

Then, less than 24 hours later, its future uncertain when the Commonwealth launched a High Court challenge.

ANNA BROWN, HUMAN RIGHTS LAW CENTRE: The State Act actually has to create this new category of same-sex marriage and that new category of marriage has to be sufficiently distinguished from the Federal Marriage Act so the two are completely separate and those constitutional inconsistencies don't arise.

ANNE TWOMEY, PROF, CONSTITUTIONAL LAW: The ACT bill is sending mixed messages. It's saying 'no it's marriage equality', what we're doing is marriage like under the Commonwealth law and once you try and get into that field that's when you end up in trouble.

KAREN TAN: Since the bill has passed the word has spread. Couples around Australia are considering the option of a Canberra wedding, despite a marriage only being recognised in the ACT.

CHRISTINE FORSTER, CONCILLOR, SYDNEY CITY COUNCIL: If I lived in the ACT, I'd probably be really seriously considering getting married under that legislation.

KAREN TAN: Christine Forster is one of the country's most well known same-sex marriage advocates.

CHRISTINE FORSTER: It's a way that allows people to say, you know, this person and I are family to each other and we have a special relationship.

KAREN TAN: Not so, her brother. The Prime Minister of Australia.

TONY ABBOTT, PRIME MINISTER: Look I'll do the right thing, but look, I am a traditionalist Neal on this. From time immemorial, in every culture that's been known, marriage or that kind of solemnised relationship has been between a man and a woman.

CHRISTINE FORSTER: We don't avoid discussing it. It does come up, when we are talking. So it's not something that - we haven't had to ring fence it or anything like that. It doesn't cause us problems.

KAREN TAN: The family conflict is echoed in the broader community, as the debate continues on whether same-sex marriage should be legal.

The ACT Chief Minister will consult with lawyers on Monday to explore legal amendment options.

KATY GALLAGHER, ACT CHIEF MINISTER: At the end of the day we want this bill to have the best chance it can in the High Court and if that requires further amendments, we are open to considering them.

KAREN TAN: Those taking the plunge have to wait at least a month before their marriages can be conducted. And now the High Court challenge has cast a cloud of doubt over whether any will be legally binding.

ANNA BROWN: In fairness to the ACT Government, this expert advice only became available very recently. They did act quickly when they received it to amend the act or the bill as it was then, but they did half the job and they simply need to finish it, otherwise the Act simply is doomed.

ANNE TWOMEY: You might be able to call it - and the Tasmanians tried this in their draft bill - it was called same-sex marriage and same-sex marriage is a different thing, it's a separate institution from marriage under the Commonwealth Act and that might be one way to get you through but it really depends very much on how the High Court sees this.

KAREN TAN: The High Court has set a hearing date between the 3rd and 6th of December. The earliest couples could marry in the ACT is December 7th. It's possible Australia's first same-sex marriages may be short lived.

Karen Tan, Lateline.