Page 1767 - Week 05 - Thursday, 8 May 2008

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the laws of the Australian Capital Territory that existed until the development of this bill, and that was the non-recognition under the law of gay and lesbian relationships.

I share the frustration that is inherent in the contributions by my colleagues. The civil union act which we passed two years ago was overturned. It was overturned by executive fiat; it was not overturned as a result of a clash between the constitutional rights or roles of the commonwealth vis-a-vis the territory. My earlier comments which Dr Foskey referred to in relation to a determination or a desire of having that tested in the High Court could have been achieved only if the commonwealth purported to use its constitutional powers to assert that the ACT’s civil union legislation was in conflict with the Marriage Act.

In both instances—under the Howard government and the threat of the Rudd government—the commonwealth was not to use a purported conflict between the Marriage Act and the civil partnerships act; it was to use the plenary powers inherent in section 122 which prevented the matter being agitated in the High Court. That is at the heart of our concern in relation to the affront to the democratic rights of the people of the ACT which the position of both the Howard and Rudd governments presents—as well as being an equally deeply and disturbing affront to the human rights of citizens within the Australian Capital Territory.

Mr Berry is right. We could have sought to call the bluff of this government. At the end of the day we chose not to. At the end of the day, I and, particularly, Mr Corbell, who was involved most deeply in negotiations with the commonwealth over the last six months, took a decision that the commonwealth was genuine in its threats and its determination to prevent us legislating in the form and the style that we had intended and wanted.

It has to be said that the legislation which we will pass tonight is not the legislation that we had hoped to pass. As Mr Barr has said, it is a small step. It is a step; it is a significant step. It is a step that we would have preferred to have been able to celebrate a little more than we will perhaps celebrate it. But we should not lose sight of the fact that it is a significant step in the context of the law—the formal recognition of gay and lesbian relationships and the capacity that the ACT government has constructed, through work that Mr Corbell has done, to ensure that the state, through the ACT government, is involved in celebrations that may, at the behest of a gay and lesbian couple, give the opportunity to register their relationship as provided by this law.

I will summarise briefly so as not to repeat the arguments that have been put. This is not the outcome that the ACT government wanted. It does not deliver the equality under the law that the ACT government had wished to deliver. It is a matter of significant embarrassment to me, as Mr Berry has also expressed. It is a matter of embarrassment to me that my party, the Australian Labor Party, through the federal government, the federal caucus, did not stand up for this fundamental principle. It is a matter of shame that my party must bear. I am embarrassed at the position that my federal colleagues have taken. I am embarrassed that I have been unable to meet the commitment that I have made repeatedly that I would seek to remove this last vestige of legislative discrimination against gays and lesbians in this community.

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