Page 4786 - Week 13 - Wednesday, 11 November 2009
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Some time after the ACT’s provisions were knocked down by the previous government, the ACT sought legal advice on further amendments to the legislation. In essence, that legal advice, which only came to light well over a year after it was written, says that the problem with the proposed ceremonial declaration of a civil partnership is that it allows a heterosexual couple to make that declaration and that that is the thing which offends against the Marriage Act. Furthermore, in doing so, it also allows same-sex couples to make that declaration. Thus, by extension, these arrangements challenge the definition under the Marriage Act.
I wonder whether the proponents of the bill from the Greens have questioned the attorney as to why it has taken so long for this advice to see the light of day. If this advice had been available when the government last proposed this issue or when the government fell foul of the now Attorney-General, Mr McClelland, it surprises me that it did not come to light at that stage. Why has it taken so long for the government to act on what they seem comfortable with at the moment?
Having read the advice and having sought advice on the advice, I think that we are in a situation where the government is not really very confident about its own advice, and there are some tendentious matters in that advice which I will address when we deal with the amendments. There are matters here which go to the heart of the Australian constitution. It has been the view of the Canberra Liberals that we should not be trespassing on the rights of the commonwealth in this matter, because it needlessly creates fights and undermines the relationship of the ACT with the commonwealth. It is the view of the Canberra Liberals that there are greater things at stake in our relationship with the commonwealth than this matter, which is being tried for the third time.
Suffice to say, the government, in their amendments, are seeking to get around what they understand are the constitutional issues by amending the Greens bill to exclude heterosexual couples from being able to participate in a ceremonial declaration of a civil partnership. The reason for doing that is that they would be able to undertake a ceremonial declaration under the Marriage Act. Regardless of the form that the civil partnership finally takes, a ceremonial declaration still closely resembles that of a marriage, and on that basis it will offend against the Marriage Act. It is almost certain that the commonwealth will intervene, and the government’s under-the-counter approach to circumventing the Australian constitution will not fool the commonwealth government.
A civil partnership ceremony still looks like a marriage, it still sounds like a marriage, it still feels like a marriage, therefore it probably is a marriage. As such, it will challenge the commonwealth’s Marriage Act. This is the main reason why the Canberra Liberals will be opposing this legislation.
MR BARR (Molonglo—Minister for Education and Training, Minister for Planning, Minister for Tourism, Sport and Recreation and Minister for Gaming and Racing) (10.37): In responding to Mrs Dunne’s contribution and in speaking in support of this bill and the proposed government amendments, I think it is worth placing on the record some key statements of principle that need to be aired in this debate.
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