Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | Hansard source

I am speaking in support of this disallowance motion, and I will be opposing any adjournment proposition that is advanced later in this discussion. It is important that we discuss this matter today because there is an opportunity here for us to at least draw the public’s attention to the enormous danger of governments seeking to improperly use wedge politics and sectarian hate politics when playing with human rights. This is a clear case where that has occurred. Since the federal government has not actually done the Australian Capital Territory government the courtesy of formally writing to it and explaining why the federal government has sought to unilaterally, by way of executive fiat, intervene and overturn the decisions of the Australian Capital Territory Legislative Assembly on the Civil Unions Act 2006, it is important that we heard from the leader of the government in the chamber today what the government’s reasons were.

To date, what have we got? We have got a few comments on the radio, designed to colour and to seek to attract a particular segment of the electorate. Of course, there is the explanatory statement that has been made by authority of the Attorney-General and the Minister for Local Government, Territories and Roads in regard to the instrument of disallowance, which is made up of six short paragraphs and which has now been published. This says that the government has acted because there was an ambiguity in the Australian Capital Territory legislation and that the Australian self-government act specifies that there are no conditions for which the Commonwealth government can intervene to override the Australian Capital Territory, and does not have to satisfy itself in any public way as to the reasons to do so but is able to act in such a way as to disallow any instrument of the Australian Capital Territory.

That is all spelt out in the explanatory memorandum. This instrument has the same effect as a repeal of the Civil Unions Act 2006, we are told. But there is no explanation as to why the government should have acted in such a way—none whatsoever. And what do we hear today? We hear from the Leader of the Government in the Senate that there are a number of reasons that the government has acted. All I can say in response to the claims he made today is that either the minister is very badly advised or there has been a deliberate strategy to seek to present information which is inconsistent with the facts—that is disingenuous or, at worst, deceptive. We were told that the Howard government has gone out of its way to help the Australian Capital Territory draw up a piece of legislation which the Commonwealth government would be happy with. We were told that the Constitution allows for the Parliament of Australia to pass laws that override those of the Australian Capital Territory. We were told that the Marriage Act is clearly a Commonwealth act.

Let me go through those claims. First of all, there is the claim about the Commonwealth government going out of its way to help the Australian Capital Territory. What do we have to that effect? A couple of letters were sent to the Chief Minister, who was also the ACT Attorney-General, and to Minister Corbell, the current responsible minister. I understand that a couple of letters were written, on 29 March and 4 May. There has been no explanation as to why the government has acted in this way since the decisions were taken this week. We have been given no formal advice. We can say that no-one is disputing that the Commonwealth has the power to make laws in regard to marriage; no-one is even claiming that that is an issue. And no-one is claiming that the Commonwealth does not have the power to override states and territories on these matters. In fact, as I read the Constitution, there are a great many issues on which Commonwealth law is supreme where it comes into conflict with a state law. No-one is arguing that is not the case. No-one anywhere has argued that proposition. In fact, it might be well argued that if, as it is claimed, the legislation of the Australian Capital Territory was inconsistent with the Marriage Act then a High Court decision would demonstrate that that was the case and it would automatically be ruled out. No-one is disputing that possibility either.

But when it comes to the claim that the government has acted in a manner that is trying to help the Australian Capital Territory, I dispute it strongly. I particularly dispute the claim made by the minister today that the government of the Australian Capital Territory has sought deliberately to run this legislation through under the cloak of a tough budget. That was the claim made here today. The truth of the matter is that the legislation was passed in the Australian Capital Territory on 11 May. It was the decision of the Commonwealth to intervene on budget day—on 6 June. So, in terms of the timing of the intervention, it was the actions of the Commonwealth, not the actions of the Australian Capital Territory, that are relevant. The minister, quite clearly, was being disingenuous when he put that case.

It is further put that no action has been taken by the Australian Capital Territory government to change its position in response to concerns expressed by the Commonwealth. It is said that some 18 months have passed since the election, and the Stanhope government has sought, as I said, to run the civil union legislation through the smokescreen of a tough budget. First of all, let us be clear: in terms of the electoral cycle, there was a clear statement presented in the election and a mandate was established. An extensive process of consultation was undertaken by the Australian Capital Territory. A proposition was clearly advanced and a number of public processes undertaken by the ACT Human Rights Office, the Good Process lobby group and the Australian Christian Lobby—processes which attracted 425 written submissions. I think it is a reasonable proposition that it takes a little while for legislation to go through a consultation process and be enacted by the legislative assembly of the Australian Capital Territory. That is within its powers to do, and it did so on 11 May. I seek leave to table two letters from Minister Corbell to Minister Ruddock, which cover these very issues, to demonstrate the points which I am making.

Leave granted.

The letters from Minister Corbell point out:

The Australian Capital Territory is a self-governing territory and the Australian Capital Territory Legislative Assembly is the democratically elected body with the power to make laws for the peace, order and good government of the territory. The Civil Unions Bill affects only Australian Capital Territory law and is entirely and appropriately a matter for the Australian Capital Territory Legislative Assembly to decide.

I understand from your comments in an interview on ABC radio earlier this year and from recent correspondence that you also agree that the power to make laws about civil unions belongs to states and territories while the Commonwealth has power to make laws about marriage. You further indicate in that interview that your government would be happy to leave the states and territories to decide whether or not the legislation for civil unions.

The Australian Capital Territory has introduced legislation that provides not only for a system for recording civil unions but also for the way in which they will be recognised and dealt with under Australian Capital Territory law. It does not affect the status of marriage and, in fact, subclause 9(2)(a)(ii) and subclause 12(1)(b) ensure that a civil union will always give way to marriage. As such, I believe that this is a matter for the Australian Capital Territory.

Notwithstanding all of that, Minister Corbell goes on to say, ‘We are prepared to amend the act further still to satisfy the concerns of the Howard government.’ He went on to say that various uses of the terms ‘marriage’, ‘spouse’ and ‘married’ appear in the legislation, which is aimed at ensuring that there is a non-discriminatory approach taken to basic human rights such as the right to own property. You would think a government such as this one, which is so committed to capitalist values, would ensure that those principles would be upheld in Australian law. On the contrary, we are seeing acts of discrimination being perpetrated in a bid for partisan political advantage in a very narrow range of electorates in this country.

We are not seeing any serious discussion of amendments, because the truth of the matter is that, in response to Commonwealth request, this legislation was amended 63 times by the government of the Australian Capital Territory. So, when the minister comes into this chamber and says that there has been no attempt to deal with the concerns being expressed, he is clearly wrong—just plain wrong.

Furthermore, legislation that has been carried by the legislative assembly in the territory is further open to amendment, and this has been indicated by the responsible ministers in the Stanhope government. If this government were genuine about seeking to reconcile these issues, it would have used the relevant clauses of the Australian Capital Territory (Self-Government) Act that define the Governor-General’s power to intervene at the request of the executive council to seek further amendments. There are other courses available to this government to seek those amendments. As I say, no formal request was made to do any of those things.

One is left with the conclusion that this government is disingenuous on this issue. This action has been taken for partisan political advantage, as it sees it, for ideological and base political motives. We are not facing a situation where there has been any human rights abuse. There is no claim being made that the government of the Australian Capital Territory has acted in a manner that would require interventions—and, believe me, I acknowledge the right of this parliament to intervene. I take a different view from many; I do not believe that, where state rights come into conflict with human rights, state rights should be upheld. I take the view that all citizens in this country should be treated equally and have equal rights no matter where they live in the Commonwealth.

There is no case whatsoever being made that the people of the Australian Capital Territory are not capable of electing a government that is capable of acting to ensure a non-discriminatory approach on these questions. No human rights abuse has been alleged. No corruption has been alleged. No abuse of constitutional process has been alleged. There has been no claim that would justify an intervention of this type.

I take the view that what we have here is purely and simply a political act, not a constitutional dispute about the Marriage Act, because that is not in question. The legislation that has been carried by the Australian Capital Territory makes it clear in at least three separate places that that is not in question. I am left with the conclusion that we are talking here about politics. It is politics, pure and simple. The real irony is that, if you look at the opinion polls on these questions, public opinion has moved substantially. This is not even about what the majority of Australians think, because the majority of Australians take the view that if people want to have a civil union of this type then so be it. Do not think that people get hot under the collar about it.

It is clear that in some strategically placed electorates there is a minority view that may well be decisive in a tight election. It strikes me that we are talking here not about constitutional questions but about base political stratagems by a government that is seeking to appeal to a very tiny minority opinion in a number of key electorates. It is not about giving people a fair go and it is not about ensuring the protection of human rights. On the contrary, it is about playing with human rights in a manner that is clearly aimed at discriminating against a minority of Australians.

If it is so wrong that people have equality of rights in terms of their property, would the government please explain to us why that is the case? Why is it the case in terms of superannuation, people’s ability to own or transfer the ownership of a house, social security benefits or any of the other basic rights we have as citizens that there should be one rule for some Australians and another rule for others? This is a clear case where the government has not sought to engage in a process to ensure that its concerns are addressed. There is a simple explanation for this: the government does not want to engage in such a process.

For this stratagem to work—and I think it is grossly misplaced in many respects—the government needs to have a confrontation. That has been demonstrated very clearly because Minister Corbell approached Minister Ruddock about these matters. In the letters I have tabled today this is quite clearly identified. He asked a direct question: ‘What action can we take to satisfy the Australian cabinet?’ The answer, of course, is: ‘Well, we have made no decisions about what action you could be taking. We don’t have an answer for you.’ Quite frankly, I do not think Minister Ruddock is such a bigoted person as to not have an answer to that question. I have no doubt that the man has quite a detailed understanding of what is required to satisfy the demands of the Commonwealth—he would if he were genuine. I think he probably would understand the needs. The reason he cannot answer the direct question from Minister Corbell is that it does not suit the political stratagems of the Prime Minister.

When Minister Minchin comes in here today and gives us his half-baked explanation for it, it is quite transparent that the government does not have a case. It does not have a legitimate, logical explanation for its high-handed intervention—