Page 1629 - Week 05 - Thursday, 11 May 2006
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the Federal Government has determined in the Marriage Act how a man and a woman may form a union that gives to them the privileges and responsibilities of marriage and that this is intended to cover the field in Australia on this subject. Insofar as the ACT Bill purports to create another method of attaining the privileges and responsibilities of marriage, it is clearly and obviously unconstitutional. The provisions of the Federal Constitution cannot be circumvented simply by calling something by a different name.
15. It is also clear that the ACT, like other Territory and State governments, may enact laws governing the relationships of de facto heterosexual couples and same sex couples and such laws already exist throughout Australia. There is no constitutional difficulty, for example, in States and Territories passing laws governing the division of property if relationships break down, or providing for inheritance rights where there is no will. These and other matters are within state and territory jurisdiction. The responsibilities and privileges attached to such relationships may in certain specific respects mirror those associated with marriage if the legislature so desires, (bearing in mind that many such couples will not want the same consequences as marriage to attach to their relationships). There is also no reason why States and Territories should not make laws permitting non-married couples to register their relationships publicly if they so choose.
16. The constitutional problem in relation to the ACT Bill is in giving the civil union the same effect as marriage under territory law, in all respects, including the common law. The Federal Parliament determined in 2004 that the Marriage Act should explicitly provide that marriage must be the union of a man and a woman. This legislation had bipartisan support in the federal Parliament. A same sex couple cannot under the Marriage Act enter into a relationship that is called “marriage”. People may agree or disagree with that decision. The issue is whether that decision may be circumvented by State or Territory laws within the democratic and constitutional framework of the Australian Federation.
I will take my second 10 minutes now. The advice continues:
In our view, the ACT has no such power to enact that a same sex couple, can enter into a relationship called a civil union that is declared by s5(2) … “to be treated for all purposes under territory law in the same way as marriage”. Section 5(2) purports to replicate the substantive status of marriage (“for all purposes … in the same way as marriage”) whilst attempting to maintain a different form by calling it a civil union. That is in our view inconsistent with the Federal Parliament’s enactment that the privileges and responsibilities of marriage should be confined to a relationship between a man and a woman entered into in accordance with the provisions of the Marriage Act 1961.
They conclude:
17. The Marriage Act “covers the field” in that it is clearly intended to be exclusive within its field. The field covered by the Marriage Act is the field of marriage generally. The Act defines marriage to be a heterosexual union. The ACT Bill operates in the field covered by the Marriage Act not because it provides for civil unions, but because it purports to attribute to civil unions the same legal consequences as marriage within ACT law. It is at that point that the Bill enters the field covered by the Marriage Act.
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