The Australian Capital Territory (ACT) is a statutory territory created to house the federal seat of government, and is mainly associated with the national capital, Canberra. It has internal self-government, but lacks the full legislative independence enjoyed by the Australian states.
The bill was championed by the ACT Chief Minister Katy Gallagher and supported by all Labor members plus the sole Greens Party member, Shane Rattenbury. Rattenbury secured an agreement with Labor to push for same sex 'marriage' in return for his support for Labor to form a government at the last ACT election.
This latest attempt at enacting same-sex marriage comes just over a year after an attempt in the Federal Parliament last September was resoundingly defeated. A number of similar bills in state parliaments have also failed.
During debate ACT Liberal Opposition leader Jeremy Hanson urged the legislature to reject the bill. “We are Australia's smallest parliament in a small jurisdiction and we do not think that a majority of one person in the ACT should change the definition of marriage for a country of over 23 million people,” he said.
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In Australia, the regulation of marriage resides with the Federal Parliament since the Marriage Act came into force in 1961. The question of whether a state or a territory could legislate their own marriage laws has been the subject of a great deal of debate and hinges upon whether or not the Federal Marriage Act means that the Federal Parliament ‘covers the field’ in regards to marriage.
In the last years of the Howard Liberal government, the ACT passed a civil unions bill which was subsequently quashed by the Federal Attorney-General on the basis that it was marriage-like. However, this time around that executive power of veto no longer exists, posing a new challenge for the new Abbott Coalition Government.
Federal Attorney-General, George Brandis, recently declared that the Abbott government would challenge the ACT law in the High Court of Australia. He re-affirmed this pledge today in the wake of the ACT’s decision, and encouraged the ACT to stall the implementation of the law until the court has decided.
“It would be very distressing to individuals who may enter into a ceremony of marriage under the new ACT law, and to their families, to find that their marriages were invalid,” he said today.
However, ACT Chief Minister Katy Gallagher said that her government believes its law creates a separate form of ‘marriage’ for same-sex couples, and will hold in the High Court. The bill presented this morning was amended at the last minute in an attempt to ‘challenge-proof’ it against any changes by the court.
Gallagher’s legal advice hinges on the assertion that gay ‘marriage’ is sufficiently different from marriage as laid out in the Federal Marriage Act for it to be seen as entirely separate. This relies upon the claim that, because the Federal Marriage Act expressed that marriage is a “union of a man and a woman,” this leaves the field open for other Australian jurisdictions to cover ‘marriage’ of a different kind.
Regardless of the last-minute changes, the federal government declared that it had received advice from the acting commonwealth solicitor-general that the bill was invalid.
“Irrespective of anyone's views on the desirability or otherwise of same-sex marriage, it is clearly in Australia's interests that there be nationally consistent marriage laws,” said a spokeswoman for Senator Brandis.
The ACT government is expected to move to have the same sex ‘marriage’ act operational as soon as possible, with the first ‘marriages’ possibly to take place before the end of the year. The Federal Attorney-General is rumoured to be requesting an early hearing date to be set in the High Court.
Lawyers for the Australian Christian Lobby (ACL) based in the ACT are arguing that the Bill is “inconsistent” with the Commonwealth Act and incapable of concurrent operation.
“A celebrant in the ACT officiating at an opposite-sex wedding would be, according to the legal advice, declaring as legal something which was in fact is both legal and illegal at the same time,” said ACL’s Managing Director, Lyle Shelton.
Shelton also raised concerns that Ministers of Religion and places of worship may not be protected by the ACT’s law. “The bill sets up a scheme for persons to be registered as celebrants to conduct ceremonies and although no minister will be required to register under the scheme nor make the place of worship available for a same-sex marriage, it appears there’s no stopping an action being taken against a minister under the Discrimination Act or Human Rights Act as churches are generally public places,” he said.