ACT Legalizes Same Sex Civil Unions

November 10, 2009 8:17 PM

The Australian Capital Territory, the home of the Australian capital of Canberra, has passed a bill allowing same-sex civil unions. As marriage is a federal matter in Australia, this is the highest recognition of same sex unions that is constitutionally allowed in a state or territory of Australia. However, it does give political momentum to the movement looking towards the repeal of the "one man and one woman" Marriage Amendment Act of 2004.
posted by Talez (23 comments total)

You missed out the link.

It's also worth pointing out that the bill merely allows ceremonies, not civil unions (they are already legal in the ACT) and that it explicitly excludes opposite sex couples from having the same ceremonies, thereby making it very separate from marriage.

All up, it's not really a big deal and will almost certainly be vetoed by the Feds just like they did the last two times it was passed.
posted by GeckoDundee at 8:24 PM on November 10 [1 favorite]

All up, it's not really a big deal and will almost certainly be vetoed by the Feds just like they did the last two times it was passed.

Exactly. As with the Northern Territory's Voluntary Euthanasia law in the 1990s - unfortunately I have no doubt this will be killed by the Feds, although hopefully Rudd knows better than to try, so it may last a few years.
posted by Jimbob at 8:43 PM on November 10

As a territory, rather than a state, the ACT has a parliament which can make laws, but they are ultimately at the mercy of the Federal Government.

The ACT parliament has previously tried to introduce legislation which, after negotiations with the Federal Government, was watered down to be little more than a token.

Some kind of formal celebration is allowed but not a full "ceremony". The legislation passed today changes that. But the odds are the Federal Government will veto it on the grounds that any full blown ceremony moves the unions closer to marriage which they are opposed to.
posted by GeckoDundee at 9:23 PM on November 10

[fixed the link!]
posted by jessamyn at 9:31 PM on November 10

I love that the ACT keeps trying with gay marriage. They keep getting slapped down by the federal government, but they just keep putting forward whatever they can for as long as they can.
posted by harriet vane at 9:32 PM on November 10 [1 favorite]

Equal rights in Australia have been making one hell of a stride. My state, Western Australia, recognizes de facto same-sex partners and has overhauled the complete legal code in order to give marriages and unmarried partners equal legal standing in state law. Gay couples can adopt, have access to IVF, are considered each others next-of-kin for medical decisions and just generally get to act like a married couple in every day life.

Until you hit the federal level which then goes somewhere into cuckoo-town.

Under Howard's reign the various government departments were banned from reporting themselves to the Human Rights and Equal Opportunity Commission. Basically people inside departments were saying "this is stupid and discriminatory" and wanted to officially inform the HREOC of these anomalies so that they could be corrected in legislation and Howard didn't want a bar of it. Despite "Equal Opportunity" being part of the name.

Now under Rudd's leadership the governments are free to submit anything they wish and they've so far overhauled over 100 statutes to be neutral towards same-sex couples (i.e. de facto partners are now recognized nationwide for federal things like Medicare, unemployment and pensions, superannuation (a.k.a 401k in the states) and much more.

I'd like to think that Australia has one of the most gay-friendly legal codes in the world.

And then we come to same sex marriage. The government still won't budge on gay marriage. It's not even a third rail in Australian politics. Hell, they have a damn lesbian minister in the executive! The overwhelming majority (60%) support gay marriage and with compulsory voting it's not like you can have huge blocs that are typically the only ones to vote swaying public opinion like in the US.

Nope. Government isn't touching it with a 40 foot barge pole.

I hate this country sometimes.
posted by Talez at 9:55 PM on November 10

will almost certainly be vetoed by the Feds just like they did the last two times it was passed

That's politics & Canberra for you - all swings & roundabouts.
posted by UbuRoivas at 10:02 PM on November 10 [3 favorites]

I think that there's a chance, albeit a small one, that the Federal Government won't veto this one. The Attorney General, Robert McClelland, has a marginal electorate in inner-suburban Sydney... and this electorate has a sizeable gay community.

Yes, McClelland has stated in the past that the ACT doing this would be unacceptable, but the political reality of this situation is that vetoing this law could cost him, and therefore the Government, a seat at the next election.
posted by Effigy2000 at 10:13 PM on November 10 [1 favorite]

McClelland has repeatedly said the feds will not support any legislation which "mimics marriage" and he was responsible for amending the attempt last time.

Under the constitution (this is more for the benefit of folks OS), the Federal Government has "reserve powers", that is, reserved areas of law where they can make legislation. The states can make whatever laws they want but in any conflict with correctly made federal law, the federal laws wins. So Talez isn't quite right when he says "Gay couples can adopt, have access to IVF, are considered each others next-of-kin for medical decisions and just generally get to act like a married couple in every day life". What Western Australia has done is separate those things from marriage, not extend them to gay couples. (Though you seem to be saying that when you talk about de factos, Talez, so sorry if I'm mis-characterising what you're saying). In short, whatever changes the states have made are either separate from questions of marriage or they're on the sufferance of Canberra. (It might well take a bunch of lawyers to prove the difference anyway).

The reason McClelland keeps using the phrase "mimics marriage" is that the current line seems to be that the federal government will refrain from using their reserve powers so long as gay marriage only does two out of the three of looking, walking, and quacking like a duck. What they do in relation to the territories (whose laws they can directly veto instead of using reserve powers) sends a message to the states about when they would step in.

The ACT until today had gay partnerships which looked and walked like a duck. Today they voted to let them quack like a duck too, so McClelland will step in again and ask them which of the three they want to drop.

And Ubu, Canberra is roundabouts and more bloody roundabouts, surely?
posted by GeckoDundee at 10:56 PM on November 10

Effigy2000, The Labor Party also has several other marginal or swinging seats in Queensland and Western Sydney that they need to keep.

McLelland is currently sitting on a 15% margin and Barton is not exactly a typical gay Sydney seat, closer to an old-school Labor seat in my opinion as it takes in areas like Kogarah etc. So I wouldn't bet on him giving up his previous line on a veto

What will be more interesting to watch is what Malcolm Turnbull, opposition leader, says that he will do. His seat has a substantial gay consituency, but many in his party will be vehemently opposed to gay marriage in any form.
posted by girlgenius at 11:12 PM on November 10 [1 favorite]

Canberra is roundabouts and more bloody roundabouts, surely?

Canberra has a huge number of small parks scattered throughout suburbia (probably part of the general planning strategy of keeping land values high by restricting supply) and they often contain a number of swings. I'd say the ratio of swings to roundabouts is close to 1:1.
posted by A Thousand Baited Hooks at 12:16 AM on November 11

Oh, I wouldn't bet on it either, girlgenius. Just saying, it's possible, albeit a small possibility.
posted by Effigy2000 at 12:22 AM on November 11

What will be more interesting to watch is what Malcolm Turnbull, opposition leader, says that he will do. His seat has a substantial gay consituency.

Unfortunately, it also has a much more substantial blue-blood Sydney-money liberal-voting constituency, and ol' Malcom's having enough trouble holding his party together as it is, so I doubt he'll throw his hat into the ring on this one. As I said, I remain hopeful that Federal Labor will let this one slide, since gay marriage is hardly a public meme in Australia at the moment (and Big Kev's got bigger problems to deal with) and hope no-one notices. At the very worst, this issue might get Stephen Fielding re-elected.

Actually, no. Even that won't happen.

I'm very hopeful for my home state of Tasmania, actually. Although Tasmania was the most recent place where homosexuality was actually illegal, we've made great strides since that point. Look at me. I've only been living in Tassie for 18 months and I'm already using the Royal "We"...
posted by Jimbob at 2:18 AM on November 11

Isn't the "we" a reference to both heads?

Seriously though, girlgenius and Jimbob are both spot on except "the bigger problems" that Rudd has to deal with at the moment are redneck racism and rising interest rates. It's hard to see federal Labor not vetoing this when their polsters are telling them that the lack of a "fuck you, boat people" policy is losing them blue collar votes.

If we all sit back and let them go that way we'll get Liberal Light or I Can't Believe It's Not Labor for between now and when the tories get back in. We should all be telling our MPs that "relationship registers" aren't good enough (and that "x-ville solutions" to refugees aren't good enough either).
posted by GeckoDundee at 2:58 AM on November 11

So Talez isn't quite right when he says "Gay couples can adopt, have access to IVF, are considered each others next-of-kin for medical decisions and just generally get to act like a married couple in every day life". What Western Australia has done is separate those things from marriage, not extend them to gay couples. (Though you seem to be saying that when you talk about de factos, Talez, so sorry if I'm mis-characterising what you're saying)

While in essence that is what the state government has done, that's only half the puzzle. The other half is recognising same-sex couples as de facto couples which our state government and the federal government for that matter, has also enshrined in law.

Which is why the gay marriage debate seem so silly to me. In all practicality a same-sex couple has all the rights of a married couple in Australia thanks to recognising unmarried couples as a de facto (for lack of a better word) "marriage". It seems silly and obstinate to keep gays from marrying at this point.
posted by Talez at 4:28 AM on November 11 [1 favorite]

Talez, the point is the Feds have the power to make laws about marriage. So whatever your state or anyone else's state does to give people civil rights, Canberra can take them away whenever they want insofar as they relate to "marriage".

This is a really interesting area (if you care about the law in an intellectual way), but most people affected by it want to know what it results in.

A lot of this is semantics about what "celebration" or "marriage" mean, but a lot of it is more substantial than that, and even if you think "I live in a state, not a territory", the feds have just as much control over your relationships.
posted by GeckoDundee at 4:48 AM on November 11

In an interesting parallel, Washington D.C. (which already recognizes same-sex marriages performed out of state) is about to pass a law allowing such marriages to be performed in the district.

Congress has the ability to veto any such legislation within 30 days of its passage, but it looks like it will not intervene.
posted by thewittyname at 5:47 AM on November 11

I've received a very satisfactory response from my otherwise dodgy MHR on the refugee issue (it took just 20 minutes for him to reply). Now I'm looking to target the last-placed ALP Senate candidate on refugees, climate change and this. In the Senate - particularly if there is a double dissolution - being prepared to vote Green then is something that can move the Government now. And after Steve Fielding, who's going to vote above the line even if they're short on time?
posted by hawthorne at 6:06 AM on November 11

Talez, the point is the Feds have the power to make laws about marriage. So whatever your state or anyone else's state does to give people civil rights, Canberra can take them away whenever they want insofar as they relate to "marriage".

I wish I had noticed and pointed out in a few of your earlier posts some minor errors.

First of all, the federal government doesn't automatically override states. They can override territories but the states have residual powers (i.e. anything not listed in Section 51 minus a few other things that would have to be brought before the High Court before being handed over) in all matters not exclusively delegated to the Commonwealth.

Secondly, even though Canberra can refuse to acknowledge same sex couples in de facto relationships (which they did up until 2007), states may still grant civil rights to anything that falls under their power. This includes the health system, the education system, the police system and a few other areas of policy. For instance the Commonwealth could try to legislate that gay people can't ride the train to override a state law but if it was pulled up to the High Court the court would most likely tell the Commonwealth to go jump in a lake because public transportation is a state thing, because, well, Section 51 explicitly delegates the control of railways to the Commonwealth only "with respect to transport for the naval and military purposes of the Commonwealth". It doesn't explicitly say "all railroad transport" so anything outside of naval or military matters reverts back to the states to decide.

Further example. While a gay couple could adopt a child in Western Australia, if the government didn't acknowledge their relationship as an unmarried couple they received separate welfare benefits from the Commonwealth (and they did up until 2007). The fact that the Commonwealth didn't recognise the relationship meant nothing under state jurisdiction that did and each government service assessed them as such depending on which legislation (Commonwealth or state) the department was under.

Fun fact: If Australia became a republic, Western Australia would still have the queen as head of state with the Governor as her representative.

Canberra can try to taketh all they like. They can legislate until the cows come home. But unless they exclusively have the power to legislate under the constitution or have had the power delegated to them (see Australian classification and censorship as a good example of delegated powers) it will not override state law where the states hold residual powers.
posted by Talez at 6:16 AM on November 11

I wouldn't count on that Talez. The Corporations Power has been read pretty widely recently. The Constitution means what the High Court says it means. At least as of the WorkChoices decision, the States are nothing.

Fun fact: in 1933 WA voted 68% in favour of secession.
posted by hawthorne at 7:59 AM on November 11

Yep. We sent a delegation to Westminster and they told us we had to suck it up and stay in the federation. :(
posted by Talez at 1:30 PM on November 11

Will we never learn that fags and fireworks are a bad idea?
posted by turgid dahlia at 3:17 PM on November 11

So are metrosexuals - troublemaking louts, the lot of 'em.
posted by UbuRoivas at 8:51 PM on November 11