Same-sex marriage in the Australian Capital Territory

Same-sex marriage is not legally recognised in the Australian Capital Territory, following a decision from the High Court of Australia that nullified a same-sex marriage law that had been passed by the Australian Capital Territory (ACT) legislature on 19 September 2013. The Commonwealth Government challenged the law shortly after passage and the High Court voided the legislation on 12 December 2013. The 31 same-sex marriages that had been performed under the ACT legislation are consequently void.^[1]

The ACT was the first jurisdiction in Australia to legally recognise same-sex couples in 1994. It was the second to allow joint adoption petitions by same-sex couples in 2003, following Western Australia. It also is the first (and currently, only) jurisdiction to allow Civil unions after its Civil Unions Act passed the Legislative Assembly in 2012.^[2][3] Previously, identical legislation was successfully rejected by the federal Howard Government in 2006.^[4] In 2013, the Legislative Assembly voted to legalise same-sex marriage,^[5] but this law was struck down by the Australian High Court.

Civil unions and domestic partnerships

Domestic Relationships Act 1994

The first legislation to officially recognise same-sex couples in the ACT was the Domestic Relationships Act 1994.^[6] This provided for distribution of property and finances in the event of a separation, and inheritance in the event of death.

Six other pieces of legislation in 2003 and 2004

Nine years later, six extra acts came into force, passed by the Stanhope Government to get end discrimination against gay men, lesbians, transgender people, their partners and their children in all ACT laws and statutes. This acts were the:^[7]

• Legislation (Gay, Lesbian and Transgender) Amendment Act 2003
• Discrimination Amendment Act 2003
• Parentage Act 2004
• Sexuality Discrimination Legislation Amendment Act 2004
• Human Rights Act 2004
• Adoption Amendment Act 2004

Civil Unions Bill 2006

Initially proposed in March 2006, the Civil Unions Bill 2006 was intended to established civil unions for same-sex or opposite-sex couples, providing equal legal recognition with marriage under territory law.^[8] The Australian Capital Territory was the first jurisdiction in Australia to pass such legislation, attracting national attention and sparking a conflict between the ACT and the Commonwealth.

Commonwealth Attorney-General Philip Ruddock said that the draft bill "will not satisfy the Commonwealth", which would intervene unless the bill was changed.^[9] The Stanhope Government changed the specified parts of the bill; however, according to Ruddock, other changes were made that circumvented these changes.

The Civil Unions Bill 2006 passed the Australian Capital Territory Legislative Assembly on 11 May 2006.^[10] After the law had come into force on 9 June 2006, Ruddock announced that the Commonwealth would move to overrule it. On 13 June 2006, the Federal Executive Council instructed the Governor-General to disallow the Act.^[4][11] The disallowance of the Civil Unions Act was criticised heavily by opposition parties and civil rights advocates, and on 15 June 2006 a motion was moved in the Australian Senate to overturn it and reinstate the legislation. This motion was defeated 32-30 by the majority Coalition members, despite Gary Humphries voting against his party.^[12]

Civil Partnerships Bill 2006

In December 2006, the Australian Capital Territory government indicated that it would proceed with new legislation recognising same sex unions based on the United Kingdom civil partnership laws.^[13][14] ACT Attorney-General Simon Corbell made the territory's position clear, stating "It's still our intention to give the same level of recognition provided for in the Civil Unions Act." A second ACT bill, the Civil Partnerships Bill 2006, replaced the term "civil union" with "civil partnership", but was essentially the same in its effect.^[15] It was blocked again in February 2007.^{[16][17][18][19]}

Civil Partnerships Act 2008

In December 2007, following the 2007 election and the newly elected Labor Government, discussions about reintroducing a revised civil partnerships bill began again.^[20][21][22] Unlike his predecessor, John Howard, the new Prime Minister, Kevin Rudd, said that he would not override ACT legislation allowing for civil unions because it was a matter for states and territories.^[23][24]

In December 2007, the Civil Partnerships Bill went before the ACT Legislative Assembly, but quickly stalled.^[25] In February 2008, Attorney-General Robert McClelland responded to the proposed ACT legislation, saying the Rudd Government would not allow civil unions, and reiterated Labor's preference for a system of state-based relationship registers, similar to Tasmania's model. McClelland said that "the ceremonial aspects of the ACT model were inappropriate."^[26] The federal government was willing to accept state-based relationship registers so long as they did not "mimic marriage" by allowing a ceremony. McClelland's position was criticised by Greens Senator Bob Brown, who said it was the ugly face of Labor conservatism.^[27]

In May 2008, after several attempts to amend the scheme, ACT Attorney-General Simon Corbell announced the Territory had abandoned its civil partnerships legislation, eliminated any ceremonial aspects, and settled for a system of relationship registers virtually identical to the ones operating in Tasmania and Victoria. The federal Government had not compromised at any point during negotiations.^[28][29] The legislation passed the ACT Legislative Assembly on 8 May 2008, giving same-sex couples increased access to superannuation, taxation and social security law reforms. While legislative ceremonies were removed from the Bill, an administrative ceremony may be performed by a representative the ACT Register-General. The Civil Partnerships Act 2008 commenced on 19 May 2008.^[30][31][32]

Civil Partnerships Amendment Act 2009

The Civil Partnerships Amendment Bill 2009 was presented to the ACT Legislative Assembly by the ACT Greens on 26 August 2009, allowing ceremonies to be conducted with civil partnerships, which was the contentious item removed from the previous year's legislation.^[33][34] Labor initially accused the Greens of playing politics by resurrecting the issue, but unanimously backed the bill as a matter of principle as it is Labor Party policy to support civil unions.^[35]

The bill was approved by legislators on 11 November after an amendment was inserted banning opposite-sex couples from having a civil partnership ceremony. This made the ACT the first territory in the country to legalise civil partnerships ceremonies for same-sex couples.^[36] The federal government threatened to quash the legislation after it was passed, but after discussions, the federal attorney general said the issue had been resolved satisfactorily, with the legislation to require that same-sex couples register their intention to hold a ceremony and opposite-sex couples be barred from entering into a civil partnership ceremony. The ACT Legislative Assembly introduced and passed the amendments when it sat next in Parliament.^[37] The Act was subsequently repealed as a result of the Territory's implementation of the Civil Unions Act 2012.^[38]

Civil Unions Act 2012

In August 2012, the ACT's Civil Unions Bill passed after legal advice that the federal government had removed its ability to legislate for territorial and state same-sex marriage after it defined marriage as only between man and woman in the Marriage Amendment Act 2004. The Civil Unions Bill granted many of the same rights to same-sex couples as people married under the Marriage Act.^[39][40] The Act was not challenged by the Gillard federal Government. The Act was to have been repealed upon commencement of the Marriage Equality (Same Sex) Act 2013 (ACT), which (had it not been struck down by the High Court) would have legalised same-sex marriage in the Territory. Due to the High Court holding the ACT's same-sex marriage law to be invalid, the Civil Unions Act 2012 remains in force and civil unions can still take place in the ACT.^[3]

2013 same-sex marriage bill

On 13 September 2013, the Australian Capital Territory (ACT) Government made the announcement that it would put forward a bill that would legalise same-sex marriage, following a decade-long attempt to legislate in the area.^[41] “We’ve been pretty clear on this issue for some time now and there’s overwhelming community support for this,” Chief Minister Katy Gallagher said. "We would prefer to see the federal parliament legislate for a nationally consistent scheme, but in the absence of this we will act for the people of the ACT." The Marriage Equality Bill 2013 enabled couples who were not able to marry under the Commonwealth Marriage Act 1961 to enter into a marriage in the ACT. It provided for solemnisation, eligibility, dissolution and annulment, as well as regulatory requirements and notice of intentions in relation to same-sex marriages.^[42] The bill was debated in the ACT Legislative Assembly on October 22, 2013, and passed by 9 votes to 8.^[43][44]

Under the legislation, same-sex marriages were allowed to be performed in the ACT from December 7, 2013.^[45] Couples were required to give a minimum one month's notice of intention to marry and 47 couples were eligible to marry in the period between December 7 and 12, when the High Court struck down the law.^{[46][nb 1]} In total, 31 same-sex couples elected to marry in the 5-day period between the law's implementation and its subsequent annulment by the High Court.^[47]

Challenge in the High Court

On October 10, 2013, George Brandis, the federal Attorney-General for Australia, confirmed that the Commonwealth Government would challenge the ACT bill, stating that the Abbott Government had significant constitutional concerns with respect to the ACT bill.^[48] The case was cited as C13/2013: The Commonwealth of Australia v. The Australian Capital Territory.^[49]

The full bench of the High Court of Australia heard the Commonwealth Government's challenge to the ACT marriage laws on December 3, less than one week prior to the legislation going into effect.^[50] On 13 November, the Commonwealth submitted to the court its written submission,^[51] which contained arguments in support of the supposed constitutional and legal invalidity of the ACT's law, stating that the law is "inconsistent" with the provisions of the Self Government Act 1988 (ACT) and the federal Marriage Act.^[52] The Solicitor-General of the Commonwealth submitted to the High Court that:^[52]

The [Commonwealth] Marriage Act simply does not permit of the possibility that a State or Territory might clothe with the legal status of marriage (or a form of marriage) a union of these kinds. It leaves no room for a State or Territory legislature to create a status of 'bigamous marriage', 'polygamous marriage', 'arranged involuntary marriage' or 'trial marriage'. Similarly, within and by reason of the schema of the Marriage Act, couples who are not man and woman (whether same-sex or intersex) are and must remain for the purposes of Australian law 'unmarried' persons. They remain on that side of the binary divide.

The ACT provided its submission to the Court on November 25, arguing in response to the Commonwealth that "neither the Marriage Act 1961 (Cth.) nor the Family Law Act 1975 (Cth.) manifest an intention to be an exhaustive or exclusive statement of the [Australian] law governing the institution of marriage".^[53] The Commonwealth was granted a final right of reply of submission to be due on 29 November, prior to the hearing commencing on 3 December.

High Court ruling

The High Court issued its ruling on 12 December 2013, striking down the ACT's law as inconsistent with the federal Marriage Act and proclaiming that the Constitution permitted only the federal parliament to make laws with respect to marriage in Australia.^[54]

In its judgment which struck down the ACT's marriage law, the Court held that:^[55]

The only issue which this Court can decide is a legal issue. Is the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, inconsistent with either or both of two Acts of the federal Parliament: the Marriage Act 1961 and the Family Law Act 1975? That question must be answered "Yes". Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament.

The Court went further to clarify the extent of the inconsistency of the ACT law with the federal law by stating that:

The 2004 amendments to the [federal] Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage...These particular provisions of the Marriage Act, read in the context of the whole Act, necessarily contain the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia. It follows that the provisions of the ACT Act which provide for marriage under that Act cannot operate concurrently with the [federal] Marriage Act and accordingly are inoperative.

Same-sex marriage remains illegal in the Australian Capital Territory due to existing federal law which defines marriage in Australia as the union of one man and one woman.

See also

• Recognition of same-sex unions in Australia
• LGBT rights in the Australian Capital Territory
• LGBT rights in Australia

Notes

References

External links

• How to enter into a Civil Partnership at ACT Registry of Births, Deaths and Marriages