A Dividing Union

It was an issue that divided the nation; pitting a Territory Government against the Commonwealth, internally dividing political Parties, and setting Churches against their congregations. The overriding of the ACT’s Civil Union Act by the Australian Government on 13 June sparked a pubic debate, which even Canberra ‘s Catholic Archbishop Francis Carroll feared, ‘was turning into a political point-scoring exercise.’

[IslandAd]

On 11 May, Australia’s first Civil Union Act was passed by Jon Stanhope’s Government in the ACT. According to Simon Corbell, the ACT’s Attorney-General, the legislation was designed to ‘remove references in the ACT statutes that discriminated against people in same sex relationships and to give a legal basis to same sex relationships in the same way that heterosexual couples have either through de-facto relationship or marriage.’

The Civil Union Act was also open to heterosexual couples and was the last piece of legislation to be passed by the Stanhope Government as part of its human rights mandate on which it was elected in 2004.

When the legislation was initially released in draft form, the Federal Government outlined its concerns but did not suggest how these areas could be addressed, according to Corbell.

Sixty-three amendments were made to the Bill and communicated to the Commonwealth.

But when the Civil Unions Act was overridden, the ACT Government only found out through the media. As Corbell puts it

The ACT has never been formally advised of the Commonwealth’s overriding of our legislation. I have never received any written correspondence from the Commonwealth saying ‘your legalisation is overridden’ or that ‘we intend to override it.’ It has all been done by media statement.

On the day the law was overridden, the Federal Attorney-General Phillip Ruddock told the ABC,

We have no quarrel with the Territory’s legislating in those areas in which it has responsibility, and we accept the decisions that they make supported by their electorate, except when they provocatively and deliberately seek to intrude into areas in which they have no responsibility.

This ‘area’ of intrusion was ‘marriage.’ And the Prime MinisterJohn Howard believed that the Civil Union Act was, ‘plainly an attempt to mimic marriage under the misleading title of civil unions.’

However, Professor George Williams, from the Gilbert and Tobin Centre for Public Law at the University of NSW, argues that the Civil Union Act was not marriage by a different name because:

marriage is regulated by Federal law. The Civil Union Act would have only made a difference as far as ACT law was concerned. It would not have been as extensive or have had the recognition outside the ACT. It could not have done what the Federal recognition of marriage does.

But that reality was not important. Under section 35 of the Australian Capital Territory (Self-Government) Act, the Governor-General, on the advice of Australian Government, has the power to disallow any legislation made by Australian Territories.

‘There was not legal justification for it and it came down to a political judgment the Federal Government were unhappy with what the ACT was doing and they had the power to overturn it,’ said Professor Williams.

T he Federal Government’s interference with the ACT’s self-government angered many. Gary Humphries, a former ACT Attorney-General (1992-2000) and Chief Minister (2000-1), became the first Liberal Senator in 10 years to cross the floor of Federal Parliament. In voting against the Federal Government’s intervention in the ACT, Humphries made it clear he believed that it threatened ‘democratic processes.’

But for same-sex couples, the disallowance of the law and the ensuing political debate was ‘bitterly disappointing,’ according to Rod Swift, spokesperson for the Australian Coalition for Equity  (ACE).

Swift says that the media’s branding of ACT’s proposed Civil Unions as ‘marriages’ when, in fact, they were not markedly different from existing legislation in States, such as Tasmania or Western Australia, where same-sex couples have functional legal equality gave the Federal Government political leverage:

There was no way that any of the laws or the rights that the ACT gave out were ever going to effect or damage marriage. John Howard was playing mean-spirited politics blowing that dog whistle to see how many religious-conservative votes he could win. Just like the marriage ban in 2004, this was used to recruit preferences for the next Federal election.

Swift is referring to the Howard Government’s decision in 2004 to strengthen the Federal Marriage Act, by including the definition of marriage found in Common Law as the union of a man and a woman, to the exclusion of all others into Federal law.

A move, which, according to Professor Williams, was purely political:

There was no possibility under the current law that [same-sex couples] could get access to marriage anyway. It was making a public statement in the law, for whatever political end perhaps it was a lead up to an election, perhaps it was a desire to expose the Labor Party, which was split on the issue.

Thanks to Bill Leak.

Katherine Gelber , Senior Lecturer in Australian Politics at UNSW believes that the Coalition’s decision to strengthen the Marriage Act was a clear case of ‘diversionary politics’:

It’s not surprising that the Coalition decided to strengthen the Marriage Act, because they were looking for diversions. The Coalition created this as an issue. Gays and lesbians in Australia were not champing at the bit and this was not the number one item on their agenda.

But while the move may have successfully divided the ALP and raised the flag for social conservatives, not all Liberal politicians were comfortable with it. In 2004, Warren Entsch, Liberal member for the Federal seat of Leichardt, spoke out publicly against the move. ‘I raised concerns about whether it was necessary to reconfirm the status quo and put the spotlight on same-sex couples again, which could lead to further discrimination,’ Entsch told New Matilda.

(For his public comments on the issue, the Family First Partydirected their preferences to Labor instead of Entsch, in Leichhardt.)

But even Entsch, who has tabled his own Private Member’s Bill to recognise same-sex interdependent relationships under Federal law, believed that by including the ‘M’ word in Civil Union’s Act, the ACT Government was ‘deliberately provocative and was always going to cause grief’:

I was very surprised that the ACT used the wording it did it was unnecessary. Australians are ready for equality and the removal of discrimination but many associate ‘marriage’ as part of a church-like institution. The majority of gays I have spoken to accept this scenario they want to formalise their relatio
nships but do not want to take away the exclusivity of marriage.

Whatever ‘political mileage,’ as Swift calls it, that Howard gets out of putting the words ‘gay’ and ‘marriage’ on the political agenda, Sarah Maddison, Lecturer in Australian Politics at UNSW, agrees that the real issue is equality:

Who cares if it is called a ‘marriage’ or a ‘civil union’ the fundamental issue is that people want to have their relationships recognised in Federal law. This is not just about symbolic issues, there are tangible areas where same-sex couples are treated differently.

Some of these ‘tangible areas’ where same-sex couples are currently disadvantaged in Federal law include taxation, health insurance, defense/veteran benefits and welfare. Howard has stated that he supports removing discrimination against same-sex couples, saying on ABC radiothat, ‘We are not anti-homosexual people or gay and lesbian people, it is not a question of discriminating against them.’

But then (as revealed by the Australian Financial Review on June 22) the Government instructed all Departments not to assist the Human Rights and Equal Opportunity Commission’s national inquiry into discrimination against same-sex couple. For Swift, Howard is being, ‘disingenuous’:

We are concerned that the Federal Government will try and override as many laws as possible. It says it wants to eliminate these discriminations and create equalities but it does everything in its power to provide inequality at a State or Territory level.

Swift’s concerns relate to the push from Liberal backbenchers to strengthen the Federal Marriage Act even further. One of these backbenchers, Tasmanian Liberal Senator Guy Barnett wrote the following in the Hobart Mercury on 22 June:

Unfortunately one can expect other Labor States to follow the ACT lead and that is why my preference is for the Federal marriage law to be amended and strengthened to withstand any attempt to mimic marriage and block any ACT-style legislation in the future. Our Federal marriage law should ‘cover the field.’

For the moment, the ‘Gay Marriage’ debate has moved out of the headlines. But as the 2007 election looms, some commentators are convinced we’ll begin to hear dog-whistles blown again, marshalling religious conservatives to preference deals.

Meanwhile the struggle for equality continues for Australian same-sex couples.