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ACT Marriage Equality and the Constitution

The dust has settled on the recent ACT Election and a Labor-Greens government has been returned. Student journalist Jelisa Apps follows up on her earlier story to examine the issue of marriage equality and the Australian constitution.

The legalisation of same-sex marriage is officially coming to the ACT. Marriage equality was announced by Shane Rattenbury on the 2nd of November as part of the Parliamentary Agreement between ACT Labor and the Greens.

In his press conference he said, “we have agreed we will legislate for marriage equality in the ACT in light of the failure of the Federal Parliament to pass marriage equality laws at a national level.”

The deal is not surprising considering both the Greens and ACT Labor have actively been trying to introduce marriage equality legislation in recent years and both parties made legalising same-sex marriage part of their campaign.

Whilst much of the argument is centred around who’s for and who’s against, few are asking the question – can it really be done? The ACT, being a Territory, may soon find itself in a bitter dispute with the Federal Government over the issue and at the mercy of that very pesky piece of legislation – the Constitution.

What the Constitution says

Constitutionally speaking, the ACT is regarded as having diminished powers as a Territory. Section 122 of the Constitution gives the Commonwealth the power to make laws for any Territory, even to the extent of abolishing self-government altogether. Given that the Federal Parliament has voted down marriage equality legislation recently, the Commonwealth could very well take action against the ACT to prevent it creating its own legislation.

There are two ways the Federal Parliament can overturn laws made by the Territory. The first is to amend the ACT Self Governing Act to prevent the Territory from making laws around a particular topic. The Parliament hasn’t been shy about doing this before. When the Northern Territory passed a bill to legalise euthanasia in 1995, the Federal Parliament responded by amending the self-governing acts of the Northern Territory, ACT and Northfolk Island to prevent them making laws with regard to euthanasia – essentially rendering the Northern Territory legislation invalid.

The ACT has also faced conflict with the Commonwealth over same-sex union legislation in the past. In 2006 the Attorney General Phillip Ruddock under the Howard Government directed the Governor General Michael Jeffery to block legislation to allow for civil unions. The ACT faced the threat of being overruled again in 2008 under the Rudd government and was forced to again drop its Civil Partnership legislation. The 2006 civil union legislation was eventually passed in August of this year.

This past conflict hasn’t been forgotten by the Territory’s top leaders. Katy Gallagher said prior to the election, being overruled by the Federal Government on issues such as same-sex marriage is always a concern for the when making contentious laws.

“Well we’ve been there once before so that’s always, I think, weighs on our minds but it also doesn’t deter us from our determination around this. It didn’t the first time when we knew the Federal Government had indicated they would overturn our laws which they did but that didn’t stop us from doing it.”

Bob Brown’s Bill

There is good news for the Territory though. The passing of Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act in 2011 has lessened the power of the Federal Parliament to veto territory laws. The legislation, which was introduced by Senator Bob Brown, means that the Governor General (on the advice of the Executive) no longer has the power to disallow territory laws and this can only occur with the agreement of both houses of Parliament. Had this legislation been active before 2006, the ACT’s Civil Union laws would not have been able to be vetoed under the direction of Attorney General Phillip Ruddock.

Greens MLA Shane Rattenbury said prior to the election that the Greens would be pushing for same sex marriage legislation and that some comfort could be taken from the Territories Amendment Bill.

“There is a real issue for the ACT in that we do have a Federal Government with the potential to veto some of our laws. That situation has been improved with the passage of Senator Bob Brown’s Bill that actually lessened that veto power for the Federal Parliament. For both houses of Parliament to vote against legislation that the ACT Legislative Assembly has passed, the community knows we support this, I think would be very undemocratic and I would really hope the Federal Parliament wouldn’t take those steps.”

The second way the Federal Parliament could block a piece of territory legislation is through inconsistency. Section
28 of the ACT Self Government ACT
states that a law will not be valid if there is a direct inconsistency with a Commonwealth law. It could be argued that the Federal Government need not try too hard to form an inconsistency – it may already be there. An amendment was introduced by Attorney General Phillip Ruddock in 2004 which incorporated a definition in the Marriage Act so as to define marriage as being specifically between a man and a woman. The purpose of the amendment was to ensure that any Territory or State attempting to legalise gay marriage would be inconsistent with the federal law.

Testing the Legislation

There is an argument though that says the ACT still may be able to introduce same-sex marriage and be on better grounds for passing the test of inconsistency than the states. Constitutional law expert Dr Trevor Ryan from the University of Canberra says some experts argue that the scope for a territory law to be inconsistent with a federal law
is narrower than for the states.

“In the ACT if you had gay marriage legislation in the current state of the federal legislation that makes it perfectly clear that marriage is only in the heterosexual marriage, you could very well have ACT legislation on same sex marriage that would be a completely different world to the heterosexual marriage regulated by the federal act.”

Trevor says that he believes if the ACT or a State passes gay marriage legislation it will be quickly challenged in the High Court. Although the Federal Parliament could amend the self-governing act before it gets to that stage, Trevor says it is not clear if they would.

“On past patterns you could probably predict that were a Liberal administration to come into power after the next election, then it would be quite likely that they would seek to do that. For the Labor party it is harder to predict… While it has been the case that the Labor party has not been willing to support gay marriage legislation in the Federal Parliament this year at least, it’s less clear about whether consensus could be sought to disallow or to prevent another jurisdiction, namely the ACT, from making its own legislation about gay marriage.”

Despite the potential threat from the Federal Parliament, it appears the Greens only MLA Shane Rattenbury isn’t going down without a fight.

He said in his speech on November 2nd, “this is all about decency, it’s about equality and it’s about respect. There is no reason why we shouldn’t be doing this is modern Australia. A vast, well certainly a majority of the Australian community supports this and it’s time that parliamentarians caught up with where the public is at on this
issue”.

A spokesperson for MLA Andrew Barr says while the threat of being overruled by the Federal Government is real, it
will not deter the newly found Government.

“Any veto, would, of course, be disappointing. But we are committed to pursuing marriage equality. The threat of a veto (or a High Court challenge) is not a reason not to proceed.”

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