Page 1631 - Week 05 - Thursday, 11 May 2006
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closely at that advice now that it has been tabled. But I can offer the Assembly some initial views in response to the issues that the shadow attorney has raised.
On the face of it, and just from hearing the advice as the shadow attorney read it out, it would appear, on the advice I have, that the people advising the Liberal Party on this issue have drawn the issue of inconsistency from section 109 of the constitution, which provides that state law cannot be inconsistent with commonwealth law. Section 109 does not apply in the ACT because it is a provision of the constitution as it relates to state law, not territory law. Indeed, the inconsistency provision that we must have regard to is section 28 of the Self-Government Act, not section 109 of the constitution. So, on the face of it, there would appear to be an issue there that needs to be resolved. I will certainly seek further advice on that once I have seen details of the advice the shadow attorney has tabled.
The more important issue that we need to have regard to is that the commonwealth already, in its own legislation, treats relationships similar to marriages in the same way as marriages. The commonwealth is going to have a problem getting around that. Their own legislation, their own social security legislation, for example, says that people who are in de facto relationships will be treated the same way as people who are in a marriage. Indeed, the only distinction that the commonwealth draw on that issue is that they must be an opposite-sex couple. But they state very clearly that people in a de facto relationship are to be treated under commonwealth law in the same way as people who are in a marriage. That is all the government are attempting to do here, except that we are saying it should not matter what the sexual preference is of the two people who enter into that relationship.
That is the only difference, and I am yet to hear an argument from the Liberal Party that explains to me why it is a bad thing to recognise a relationship between two people of the same sex for the purposes of treating them equally under the law, but it is okay to recognise a relationship between two people of opposite sexes for the purposes of treating them equally under the law. That is the real moral challenge that the Liberal Party has on this issue. How can it be okay to say, “You are in a de facto relationship but because you are of the same sexual preference, sorry, you cannot be recognised as a couple, as a relationship, under the law. But if it is an opposite-sex relationship, that is fine.”
That is clearly discriminatory. That is all the territory is seeking to clarify in this legislation. We are not saying that a civil union is marriage. It cannot be, because the definition is quite different. The definition in the commonwealth Marriage Act and the definition of a civil union are quite different. The definition of marriage in the commonwealth Marriage Act is that it is a union between a man and a woman freely entered into for life. That is what a marriage is under law. The commonwealth has made it quite clear in its own legislation that is what a marriage is.
That is not what a civil union is. It is not, and it is made quite clear in the legislation that it is not. A civil union is a union entered into between two people. It is not for life. Either party can dissolve it simply by giving notice. It does not have all the provisions that the Marriage Act does in terms of divorce and so on. It permits people who are of the same sex to enter into such a union, which is clearly prohibited under the Marriage Act. You cannot argue that a civil union is a marriage. The definition is quite different.
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