How same-sex couples' legal status went from
roommates, to equivalent-to-marriage, to roommates
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The legislature of the Australian Capital Territory (ACT), which
includes the city of Canberra and surrounding territories in Australia,
passed a type of marriage equity bill. The Civil Unions Bill 2006
granted same-sex couples the right to enter into civil unions and granted
them rights, privileges and obligations equal to married opposite-sex
couples.
During the week of 2006-MAY-4, Prime Minister John Howard and his Cabinet
announced their intent to overrule the law. The Australian federal
government is able to veto any ACT law within six months of its enactment.
under Section 35 the ACT Self-Government Act of 1988.
In an article on his web site titled "Commonwealth to defend marriage
against territory laws," Philip Ruddock, the Australian Attorney General
said that the ACT law's attempt to equate civil unions with marriage is
unacceptable. The article, posted on JUN-06, states:
"The Australian Government will act to defend the fundamental
institution of marriage against radical laws passed by the Stanhope
Government. Attorney-General Philip Ruddock today announced the
intention to invalidate the ACT’s Civil Unions Act 2006."
" 'The Commonwealth Marriage Act makes it clear marriage is the union
of a man and a woman to the exclusion of all others. This definition,
which reflects the traditional understanding of marriage, was passed
into law with bipartisan support in 2004,' Mr Ruddock stated."
"The ACT’s Civil Unions Act 2006 creates a statutory scheme for the
recognition of relationships which bears striking similarity to the
Commonwealth’s regulation of marriage."
"Section 5(2) of the Civil Unions Act states:
A civil union is different to a marriage but is to be treated
for all purposes under territory law in the same way as a marriage."
Mr. Ruddock said:
"Despite his public assurances to the contrary, this legislation has
always been a cynical attempt by the Chief Minister to undermine the
institution of marriage and circumvent the Commonwealth Marriage Act. I
have raised with Mr Stanhope the Government’s concerns with any ACT
statutes which create ambiguity between marriage and civil unions.
Amendments to the initial draft have not altered the substance of the
ACT laws which make it clear that same sex civil unions are just
marriage by another name."
The ACT government believes that, under the Self Government Act,
Australia's Governor-General can ask for amendments to an ACT law, in place
of having the federal government veto the law. ACT Attorney-General Simon
Corbell said that it would be more constructive for the Commonwealth to
recommend amendments to the legislation "Rather than this vague assertion
that it offends the institution of marriage."
He said:
"I mean there's no real way we can respond to that, but if they can
give us real detail and proposed amendments that will satisfy their
concerns, we stand ready to consider those, and consider them
seriously."
"Tell us exactly which clauses and which provisions of our Act they are
unhappy with how they believe those could be changed, and recommend
those amendments through the Governor-General to the Legislative
Assembly."
Law vetoed:
On 2006-JUN-13, Ruddock, the Australian Attorney General announced
that Australia's national government had overturned the legislation, with
the consent of the Governor General, effective that evening. He wrote in a
statement:
"From then, there will be no legal basis for the formation of civil
unions in the Australian Capital Territory."
Reuters reported:
"Australia's centre-left Labor opposition has said the government was
wrong to intervene over laws passed by the democratically elected ACT
government..."
A second try?
Jamie Jansen of Jurist wrote:
ACT Attorney General Simon Corbell said Tuesday [2006-JUN-13] that
the territory recognized that there was 'only an outside chance' that
the Senate would overrule the federal government's decision to overturn
the civil union bill. Corbell said that the ACT legislature would
consider reintroducing similar legislation, but called for Ruddock to
identify specific clauses the federal government found unacceptable so
that the ACT's second try at a civil unions law would not similarly
fail."
Corbell said the Commonwealth's veto was arrogant and undemocratic. He
said:
"We're therefore considering reintroduction of a substantively same
bill, and we'll consider any advice from the Commonwealth....We made 63
amendments in response to the Commonwealth's initial complaint, but Mr
Ruddock refused last week to identify what clauses remained
unacceptable."
Warren Entsch, (Liberal, Queensland) is planning to introduce a private
member's bill which would outlaw federal discrimination against same-sex
couples. It would also extend to inter-dependent couples, such as the infirm
and the persons caring for them. The bill is different from the ACT law
because it would not refer to marriage. Mr Entsch wrote to fellow
legislators, explaining the level of discrimination in access to
superannuation, veterans' entitlements, taxation treatment and Medicare. He
said that:
"The Prime Minister has told me he was surprised with the levels of
discrimination, and he's got no aversion to removing that
discrimination."
The Green and Democratic parties asked the Senate to overturn the veto.
But they appear to lack sufficient numbers.
David Humphries of the Sydney Morning Herald wrote:
"The Greens' Kerry Nettle said the Commonwealth intervention was
hateful but lacked logical explanation. The self-government rights of
the ACT had been trampled to deny rights to same-sex couples, she said."
Mary-Anne Cosgrove, spokesperson for the Civil Unions Defence
Coalition said that sovereignty, as well as human rights, was at risk.
She said:
"We also believe in the right of the ACT people to live under the
laws enacted by their democratically elected government."
Quotations used:
"Commonwealth to defend marriage against territory laws,"
2006-JUN-06, at:
http://www.ag.gov.au/
Jaime Jansen, "Australia federal government nixes civil unions law in capital district," Jurist Legal News &
Research, 2006-JUN-13, at:
http://jurist.law.pitt.edu/
