Page 4783 - Week 13 - Wednesday, 11 November 2009
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unforthcoming about its assertion that a ceremony equates with mandatory provisions for solemnisation of a marriage. However, the government believes there is a need to make that distinction between marriage and civil partnerships even more plain. On the basis of legal advice which the government received from two eminent QCs, including the current commonwealth Solicitor-General, Stephen Gageler QC, in 2008, it is clear that the provisions for a ceremony are available to a man and a woman who wish to enter into a civil partnership, but the bill might be argued to be inconsistent with the Marriage Act on the basis that the proposals in the bill for a civil partnership contain some of the indicia of a marriage—that is, a marriage-like ceremony involving a man and a woman.
The Marriage Act does not, however, address relationships between same-sex couples, and it cannot now be argued that it does. Hence, it is arguable that an act providing for the recognition of a relationship between same-sex couples, whether or not that relationship is recognised by a ceremony, is not inconsistent with the Marriage Act. Indeed, our advice from counsel is that the matter is removed from all doubt by the amendments made to the Marriage Act in 2004 by the coalition government. In simple terms, a civil partnership with a ceremony between people of the same sex cannot be marriage, because marriage under the commonwealth Marriage Act is defined as being between a man and a woman. Therefore, these amendments and the provision for a ceremony do not offend the Marriage Act.
This new bill, when coupled with the amendments that I will be proposing, will make that argument of inconsistency unavailable to the commonwealth. Whilst maintaining and reinforcing the original intentions of the bill, the government will propose amendments that will avoid any inconsistency with the Marriage Act that might arise by allowing a ceremony to take place when the parties are a man and a woman. It is important to remember that currently a civil partnership regime is available in its entirety to heterosexual couples also. The effect of the first government amendment will be that a man and woman may not declare their relationship in a ceremony, but they may apply for registration. The option to undertake a ceremony would, therefore, only be available to same-sex couples. Although this amendment may appear discriminatory in nature, any element of discrimination is, unfortunately, made necessary by the commonwealth’s affirmation of the discriminatory nature of the Marriage Act.
It is important to remember that a man and a woman have other options under the Marriage Act, and the government amendment takes away from them nothing that they had before. It simply does not positively confer on them the ability to undergo a ceremony under the Civil Partnerships Act. This is being done to avoid any inconsistency with the Marriage Act.
Turning to the issues around discrimination, as members are aware, positive discrimination is a form of affirmative action designed to directly redress the disadvantage that groups of people have experienced in the past. It is based on the premise that discrimination is appropriate in some situations to achieve equity within our community. The ACT Discrimination Act, as well as the commonwealth act, provides for special measures, or positive discrimination, to improve the situation of a group whose rights have been ignored in the past.
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