Nick Minchin (SA, Liberal Party, Minister for Finance and Administration) Share this | Hansard source

I thought I said ‘ACT’, but, if someone heard me say ‘ACTU’, let me make it clear that I am talking about the Australian Capital Territory, not the Australian Council of Trade Unions. As I was saying, the Constitution gives an unambiguous authority to the Commonwealth parliament in relation to matters pertaining to marriage and, of course, the Constitution, in section 122, also gives a very clear authority to the Commonwealth in relation to the territories. The territories are in a different legal position to the states.

Regarding the power granted to the Commonwealth in relation to marriage, the Commonwealth Marriage Act sets out the position in relation to marriage and, as is well known, that Marriage Act now makes it clear that marriage is the union of a man and a woman to the exclusion of all others. That definition, which I think quite properly reflects both the traditional and modern understanding and acceptance of marriage—one of our most important civil institutions—was passed by this parliament with bipartisan support in 2004. I acknowledge the role of Senator Guy Barnett and others, on both sides, in that important legislative clarification of what had always been understood and is clearly understood to be the nature of marriage.

Turning to the ACT’s Civil Unions Act, the difficulty from our point of view is that, whatever might be said, it is clear that the intent and purpose of that act is to equate a civil union with a marriage. In that sense we regarded it as repugnant. We have had a dialogue with the ACT over this matter which spelled out our objections to the proposed legislation in a series of correspondence and, at the end of the day, we were not satisfied with the response of the ACT. The ACT government made certain amendments to its legislation in response to the objections raised by the Attorney-General, Mr Ruddock, but, regrettably, the changes did not alter the substance of the ACT law, which effectively makes it clear that same-sex civil unions are to be equated with marriage.

Our government—and, indeed, I acknowledge the role of the opposition in this—is about preserving the proper and well-understood definition of marriage. That is why that amendment was bipartisan. Frankly, I am surprised that the opposition is supporting this motion of disallowance. Earlier this year, the Commonwealth was in a dialogue on points of detail to try to resolve the differences. We have gone out of our way to try to help the ACT to construct an act which would not contravene the clear position in relation to marriage—for which we have authority under the Constitution and which the Marriage Act now makes clear. The guts of the problem in the ACT law is in section 5(2), which, despite our ongoing dialogue with the ACT on this, says:

A civil union is different to a marriage but is to be treated for all purposes under territory law in the same way as a marriage.

The ACT have really adopted quite a hollow position. They are clearly setting out a legislative position determined to ensure that, for all intents and purposes, a civil union under their new law is to be treated as a marriage. In our clear view, what the ACT had done in other respects in the bill did not alter the substance of its legislation, which effectively amounts to a contravention of the definition of marriage in the Commonwealth Marriage Act, for which we have sole authority.

The ACT really acted quite unilaterally in ending the dialogue and proceeding to enact this legislation with that most particularly offensive clause in it. We are somewhat doubtful about the motivations of the ACT government in the way in which it has proceeded and the way in which, at the end of the day, it has forgone the opportunity to find a resolution to this matter which would ensure that, from the Commonwealth government’s point of view, we could not have an objection to this legislation. We note that this legislation was put through the ACT assembly coincidental with an absolutely horrendous budget from the local territory government, which leads one to feel some cynicism about the real motivation of the ACT government. It looks like it is setting up an alternative issue to distract attention away from the horror budget which it has just been responsible for.

In the event, the cabinet, having considered the ACT’s position on this and its refusal to meet our objections in full, decided that as a government we would move to advise the Governor-General to disallow the ACT Civil Unions Act 2006. That instrument was enacted on advice by the Governor-General on Tuesday, and it had the effect of invalidating the ACT act from midnight of that night. We regret that it has got to this, but we think that the ACT government is engaged in a political circus in relation to this issue. I think that is quite unfair, especially given that they could have found a solution which might have met some of the desirable objectives that Senator Nettle points out without resulting in the situation where we have no alternative but to oppose this disallowance motion.

Mr Stanhope, the Chief Minister, refers to having a mandate on this matter. If he has a mandate, he has had a year and a half to meet our concerns. He has failed to do that, and he has brought in this act right at the time of his very unpopular and irresponsible 2006 budget. Mr Stanhope protests that the disallowing instrument enacted by the Governor-General was a shock to him. We have consistently said to him that we would indeed reserve our right to act on this matter if the ACT act, once enacted, continued to contravene, in our view, the clearly stated position in relation to marriage as defined by the Commonwealth Marriage Act 1961.

We have real doubts about Mr Stanhope’s motivations in this matter, when clearly we were constructively engaged in a dialogue with the ACT government in order to seek to find a way in which their legislation, which sought to recognise same-sex unions, could do so in a way that did not offend our general understanding—and, indeed, the Commonwealth act’s—in relation to marriage. We believe he and his government have been given every opportunity to fix his act in a way that would not be offensive.

We find the remarks being made now by the ACT government quite offensive. We are being accused of being homophobic and all the rest of it—the normal retorts of those who do not like what the Commonwealth has done in protecting the institution of marriage. We reject that accusation out of hand, but we are very firm in our position that we will not stand by idly and allow the territory government, for which we have ultimate responsibility, to so flagrantly contravene the definition of marriage as set out in the Commonwealth Marriage Act 1961, for which we also have ultimate responsibility. The ACT cannot play games on this.

I refer you to the definition that is in the ACT act—that for all intents and purposes under territory law a civil union is to be treated in the same way as a marriage. It is quite clear that it is almost deliberately designed to provoke the response that we have made. But we have made it against the background of very deliberate and considered efforts to try to find a middle ground with the ACT. We are extremely disappointed that they have sought to confront us in this way. For those reasons, we believe that, in taking the position we have, we reflect the mainstream values of this country and a mainstream view of marriage. We are not opposed to same-sex unions as such, but to seek to equate a same-sex union with marriage is objectionable, and we will not accept that.

My good friend and colleague Senator Gary Humphries, a territory senator, has publicly expressed his concerns about our government’s position. His position is an honourable one. It is that the ACT is an autonomous parliament. I am probably one of the real champions of federalism in our government. I have a very high regard for our federation and for the role of the states in that federation. But the constitutional fact is that the territories are not states and that the territories are subject to the Commonwealth’s authority, as set out clearly in section 122 of the Constitution. Our government has exercised its authority in relation to the territories in other respects.

We seek to grant a degree of autonomy to the territories but, at the end of the day, to the extent that territories, which are ultimately answerable to this Commonwealth, contravene positions of the Commonwealth then we have the obvious authority—and indeed in this case, in our strong view, the responsibility—to act. We use that authority very sparingly, and only after deep consideration of the matter, because we respect the prerogative of the states and obviously the territories. But, where a territory has sought to act in such an obvious way to contravene the definition of marriage as passed by this parliament—the common and general understanding of marriage as a union between a man and a woman to the exclusion of all others—then we are left with no alternative but to advise the Governor-General to disallow that act.

Obviously, by virtue of the nature of that instrument, it is one that is open to the Senate to move to disallow. The government’s very clear position is that we will not be supporting that motion for disallowance, for the reasons I have set out. We think that, while we should on a case-by-case basis seek to ensure the elimination of discrimination against same-sex couples, when it comes to marriage, that is and has always been—and I hope will always be—an institution that is preserved for the union of a man and a woman to the exclusion of all others. That is the government’s clear position, and one which we believe is strongly supported by the Australian community. I conclude my remarks by noting and reinforcing the government’s very clear position: we will be opposing this motion.