Gary Humphries (ACT, Liberal Party) Share this | Hansard source

One thing that I assume unites all of the members of this Senate and indeed this parliament is that we all believe in the democratic process. We are practitioners of it and we believe in it. It is our credo. Of course, democracy is not perfect. I think it was Winston Churchill who described democracy as being the ‘worst system of government except for all the others’. As practitioners of democracy, I think we know very well the kinds of constraints and shortcomings that democracy has.

There are certain rules that apply in Australian democracy. Those rules include that elections need to be held regularly, that ballots in elections need to be conducted in secret, that electoral systems need to produce parliaments that at least approximately reflect the voting intention of their communities and so on. There are many such conventions. There is another convention, and that is that, where parliaments have legislative power over matters affecting their community, and legislate in those areas, majorities must prevail. To that convention I think we could add another—not always honoured, I have to say, but one to which many Australians pay lip-service—and that is that, where governments outline their program before an election, they have a right, where the numbers are furnished by the electorate, to see that promise become law.

I fought hard to stop Jon Stanhope from obtaining a second term of government in the Australian Capital Territory. I believe his government has made serious mistakes—as last week’s scorched-earth budget pretty clearly demonstrates. Having said that, I also have to acknowledge that Jon Stanhope won a clear majority in the 2004 election and became only the second government in the 17 years of self-government in the Australian Capital Territory to have such a majority in the Legislative Assembly. I also note that the ACT has the fairest electorate system in the country—with Tasmania. I also acknowledge that Jon Stanhope went to the 2004 election with an explicit promise to legislate to recognise in law relationships between people of the same sex and to remove legal discrimination against gay and lesbian territorians.

And here the democratic process—which of course was conferred on the ACT 17 years ago by this parliament—provides a clear formula for what happens next: the ACT government is entitled to pass laws, in an area of its legislative competence, to effect an explicit promise made to the ACT community. I am familiar—we all are—with that formula. It was the same formula that allowed me to present and pass many bills as a minister in the ACT Legislative Assembly over many years. It was the same formula that allowed me and many of my colleagues to rise in this place and to speak and to vote for the Work Choices legislation and for many other reforms that the government had promised at the 2004 federal election—promises that we claimed, quite rightly, gave us a mandate from the Australian people. It is a fair process. It is well understood by the community and it reflects a long tradition in Australian public life. I believe it is a process which the government’s decision to revoke the ACT Civil Unions Act repudiates.

In short, we may not agree with the ACT’s legislative choices, but we have an obligation to respect them where they are democratically made. Of course, there are constraints on the ACT’s legislative power and those constraints are greater than those that apply to a state. It has been stated in this instance that the Civil Unions Act trespasses onto the Commonwealth’s prerogative over marriage. Section 51, placitum (xxi), of the Australian Constitution gives the federal parliament power to make laws over marriage. The powers in section 51 are not exclusive powers to the Commonwealth, as those in section 52 are. In other words, states may make laws in the area of power outlined in section 51 unless and until the Commonwealth passes laws inconsistent with those of a state or passes laws to comprehensively cover the subject matter of the particular head of power.

A couple of years ago, the federal parliament passed legislation explicitly stating that marriage is a union between a man and a woman exclusively. I support that statement in the law and on moral grounds. Marriage is an important institution in Australian society and it is worthy of being defended. Marriage is a union between a man and a woman, and there are good reasons, relating particularly to the welfare of children, why that should be so. I recently appeared on SBS’s Insight program to publicly defend the government’s views on this matter.

Despite my opposition to the position that the government has taken on this matter, I recognise that there are flaws in the ACT’s legislation. On balance, I believe the Civil Unions Act may well in places cross the line into the domain that the Commonwealth parliament has marked out for its exclusive treatment. Having said that, however, this too must be said: the Civil Unions Act is not fundamentally a law about marriage; it is primarily a law that removes discrimination against people in same-sex relationships. To revoke the entire act when, arguably, only a small part of it is unconstitutional is a bridge too far.

The power of the federal executive to disallow a territory law is undisputed, if unprecedented in practice. But, given that democratic government is well developed and well understood in the ACT community, that power should be exercised only in the most exceptional circumstances and only when dialogue and persuasion have failed. I am not convinced that there was no alternative to disallowance. The ACT government expressed its desire, perhaps a little ungraciously, to accept the right of the Commonwealth to dislodge provisions that went too far and intruded into its exclusive preserve of marriage. It corresponded with the federal Attorney-General on this subject. In turn, it made 62—I heard Senator Carr say 63—amendments to its legislation to attempt to bring it within its own area of power. It apparently failed, but in circumstances in which I believe it has made the best attempt to preserve its power to legislate for relationships other than marriage. The power to legislate over the head of the ACT and to disallow a law of the ACT must be a last resort.

I do not believe that the record of this government on matters to do with the treatment of gay and lesbian Australians in homosexual relationships is a bad record. Over the 10 years in which we have been in government, we can clearly point to a number of measures designed to remove discrimination against people in those positions. Only recently, Senator Vanstone took the step of legislating to remove the barrier to people in same-sex relationships from applying for visas under the skilled migration program, and the government has taken other measures to effect those reforms. The government has promised to undertake further reforms of that kind, and I welcome that announcement. However, we should not pretend that the work of removing discrimination of that kind is a matter only for the federal parliament; it is a matter also for state and territory parliaments. I believe that we must not prevent territory and state parliaments from exercising that power where they have a right to do so.

My position on this matter does not reflect any disrespect to the Governor-General or to his actions. His Excellency has acted in accordance with well established constitutional conventions and he has taken the advice of his ministers. My beef is that I do not believe that he should have been given that advice in the first place. It is a very difficult decision for a person who has been a representative of the Liberal Party in two parliaments over 17 years to say that he cannot, for the first time, agree with his colleagues on a matter of this nature, but I feel that today is a day when I must say just that. I indicate that there are many duties that a member of parliament has to perform and there are many loyalties that he or she owes, but mine must primarily be to the people who elect me: the people of the Australian Capital Territory. I recognise that they have, in effect, through the democratic process, made a decision, and I believe that we need to respect and honour that decision.