Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

The Howard government has this week taken a step that no government before it has taken. For the first time in the ACT’s history, a federal government has used section 35 of the Australian Capital Territory (Self-Government) Act to go directly to the Governor-General to disallow an act passed by the ACT Legislative Assembly. On Tuesday this week that order was made by the Governor-General, disallowing the ACT Civil Unions Act 2006. The order of the Governor-General is itself disallowable and Labor, along with the minor parties, is moving to stop the Howard government from interfering in the ACT legislation on this matter.

Labor are moving to disallow this instrument because we do not believe that Mr Howard should override the ACT laws on this matter. Let me explain why. Labor acknowledge that it is this parliament—only the Commonwealth parliament—that can make laws about marriage. In fact, in 2004 we did pass a law confirming that marriage was between a man and woman. Labor supported that view then and are committed to maintaining marriage as a separate and special institution between a man and a woman. The ACT Civil Unions Act does not deal with marriage. It does not compromise, contradict or impinge on that principle. It does not and could not create same-sex marriages. In fact, in section 5 of the act, it says expressly that a civil union ‘is different to a marriage’.

Given our view that this law does not deal with marriage, Labor support the states and territories recognising same-sex relationships in the way they see fit for the purposes of the application of laws in their state or territory. The creation of civil unions for same-sex couples, which this law did, is clearly a matter for the territory. The Howard government has ignored these facts. Instead of focusing on the second part of the same provision I referred to above, which says that a civil union ‘is to be treated for all purposes under territory law in the same way as a marriage’, the government misconstrues this as saying that this means that civil unions are equal to marriage. That is simply not true. To say that something is to be treated under a law in the same way—and this government understands this—is a shorthand way to ensure nondiscrimination. It does not imply sameness. That is all the ACT act is really about—nondiscrimination.

The fact is that, like almost all states and territories, de facto couples, same-sex or heterosexual, are already treated the same way under ACT law. Those reforms were passed some time ago. The key practical effect of a civil union system is that it would stand as evidence in itself of a relationship. It is a way to have a relationship recognised and to declare ongoing commitment. In contrast, de factos have to prove that they are in a domestic partnership whenever a legal issue arises. The value of civil unions or a registration system is not in mimicking marriage but in making it easier for couples to prove they are in a relationship. Otherwise, these couples have to prove their relationship every time they want a stamp duty exemption or every time they have an inheritance, property or medical consent issue to confront.

If the clear words that a civil union is ‘different to a marriage’ are not enough to convince the government then they should look more closely at the detail. Civil unions under the ACT act have some key differences to marriage. For example, it is easier to enter into a civil union than to get married. It simply involves giving five days notice and making a declaration before a celebrant and one other witness. Compare this to marriage, which requires one month’s notice, at least two witnesses, an expression of prescribed words by both parties and a celebrant in a wedding ceremony. Another crucial difference is that, unlike marriage, civil unions have no religious aspect and cannot be conducted by clergy.

Even clearer differences between marriage and civil unions emerge when you consider how they are terminated. Unlike marriage, which can only be dissolved through a court order, civil unions can be terminated by giving 12 months notice to the ACT Registrar-General. This applies even if the civil union is terminated by only one of the parties. Further still, a civil union is automatically terminated if one of the parties subsequently marries.

It is also important to understand that the ACT Civil Unions Act has no effect outside the ACT. Unlike marriage, which is a national institution recognised in all states and territories, civil unions will have an effect only under ACT law. There is no way this action of the ACT can force other jurisdictions to take note of their form of relationship recognition, just like Tasmanians cannot with theirs. We as the federal parliament will need to deal with which relationships we recognise for the purposes of Commonwealth law, but that is an issue for us. I will speak about that later.

Because this issue affects only the territory, it should be left to territorians to decide. If self-government in the ACT is to have any meaning at all, it must mean that the ACT legislature can determine policy of this sort. It has no bearing on what happens outside the ACT and it has no bearing on the ACT’s special role as the seat of the Commonwealth government. It will only affect the way certain relationships are treated within the Canberra community and under territory law. It has no further effect than that.

The Howard government is intervening here simply because it can. No-one is asking the Prime Minister to agree with civil unions or with the details of the ACT legislation. He is simply asked to leave the issue to Canberrans and their democratically elected parliament. After 10 long years in government, the Prime Minister is too out of touch and out of control to accept that the ACT parliament is allowed to disagree with him. The residents of the ACT and, for that matter, the Northern Territory should be very alarmed by the government’s actions. It has exposed both territories to the limits of self-government without the constitutional protections enjoyed by the states. This episode has shown that the Howard government will pay no respect to the principle of self-government when the territory parliaments do something that the Prime Minister just does not like.

Quite apart from the territory issue, it is clear that our laws should be able to appropriately recognise and acknowledge same-sex relationships. In fact, in almost all the states and territories they already do. All have made or are considering laws to ensure that same-sex relationships are treated the same as heterosexual ones for the purposes of property arrangements, wills, medical consent and many other financial, medical and personal matters. Tasmania has gone a step further, providing a system where same-sex couples can register their relationship. Most recently the ACT took a different approach by introducing civil unions—registered relationships created through a ceremony. This is the law we are debating today.

The jurisdiction that sticks out like a sore thumb is the Commonwealth. Federal law still actively discriminates against gay and lesbian couples in areas like superannuation, health and welfare benefits, insurance, veterans affairs, family law and taxation. Labor has long highlighted this injustice and will continue to argue for the removal of all of these forms of discrimination so that same-sex de facto couples and heterosexual de facto couples are treated the same when it comes to laws and benefits.

Recently, federal Labor have also been undertaking consultation on whether we need a national system for recognising same-sex couples, and what form it should take. Of course, the steps states and territories take down the path of registration or civil union will be a key factor in any approach we adopt in the future, but one thing we cannot tolerate is a federal government that have ignored these practical injustices in their own arena telling the ACT that its measures will be overridden. We do not support the Howard government’s action to override territory law on this matter and will vote to disallow the Governor-General’s instrument. With those words, I will conclude.