ACT Labor Government takes first step towards legalising same-sex marriage

Released 19/09/2013

Attorney-General, Simon Corbell, today introduced the Marriage Equality Bill 2013 into the ACT Legislative Assembly, paving the way for same-sex marriage to be legalised in the ACT.

Mr Corbell said it was a proud moment for the ACT Labor Government, which has a strong tradition of supporting equal treatment before the law, irrespective of sexuality.

"Because of the stalemate on the issue in the Federal Parliament, it now falls to the states and territories to assess their commitment to provide fair and equal recognition to people in committed relationships and to act accordingly," he said.

"The ACT Government's position is that the Bill is within the power of the ACT Legislative Assembly to make."

The Marriage Equality Bill 2013 does not propose a residency requirement.

It will be debated by the ACT Legislative Assembly in October 2013.  

The presentation speech delivered today by Attorney-General, Simon Corbell, is included below.

Madam Speaker

This bill is about equality.

It is a bill which says people in a same sex relationship are able to have their love and commitment to each other legally recognised in the same way that people in a heterosexual relationship are able to.

Through a legally recognised marriage.

This Labor Government has consistently advocated and acted to remove discrimination and establish equality before the law for all people in our city, regardless of their sexual orientation.

In 2003 and 2004 we amended the territory's statute books to remove discrimination against gay and lesbian people in the areas of parentage, IVF access and adoption.

In 2006 we enacted Australia's first Civil Unions law, making civil unions between same sex couples and heterosexual couples legally equivalent to marriage. This law was overturned by the then Federal Government.

In 2007 the Government attempted to legislative for a Civil Partnerships law, which was eventually passed in a modified form in 2008.

In 2009 the Civil Partnerships Act was amended to provide for legally binding ceremonies and authorised celebrants, elements which the then Federal Government had previously objected to.

In 2012 the Civil Unions Act was passed to reinstate the full provisions of a civil unions scheme which had been previously disallowed in 2006.

In October last year, as part of our election policy platform, we committed to legislate for same sex marriage.   In June this year the Government agreed to continue its human rights and legislative reform program with the drafting of a new law for full marriage equality in the Territory. 

This Labor Government's commitment to reform, equality and fairness is enduring.  Enduring because it is underpinned by the principled belief that human rights are central to a civilised, fair and just society.

A just society where the legal recognition of their relationship through marriage is not denied

to hundreds and hundreds of couples in our City, living together in loving and committed relationships, simply because of their sexuality.

This bill asserts that the right to equality and the right to protection from discrimination under section 8 of the ACT Human Rights Act requires the removal of barriers to a civil marriage, even in circumstances where other discriminations, such as financial and parentage, have already been removed.  

Often those opposed to this reform will assert that because other forms of discrimination have been removed there is no need to extend the concept marriage to same sex couples.

To this we say, in the words of Justice LaFome of the Ontario Supreme Court, ' any 'alternative' to marriage…simply offers insult of formal equivalency without the promise of substantive equality'.

This bill asserts clearly and unambiguously that all people are entitled to respect, dignity, the right to participate in society and to receive the full protection of the law, regardless of sexual orientation.

The introduction of this law is a response to the broad support across the ACT community for the implementation of a legal framework for same sex marriage.

There is a clear support for full and equal recognition of same sex relationships. The Australian Council of Human Rights Agencies (ACHRA) has highlighted that "the absence of a right to civil marriage for same sex couples…(continues to) reinforce the different value placed on relationships between opposite sex and same sex couples. The Government agrees with ACHRA's statement that ' the principle of equality therefore requires that any formal relationship recognition available under federal law to opposite sex couples should also be available to same sex couples. This includes civil marriage.' 

The Marriage Equality Bill 2013 substantially draws upon other bills presented in other states and territory legislatures, particularly the New South Wales State Marriage Equality Bill, which is similar in structure and provision to the Commonwealth Marriage Act 1961. 

The bill replicates certain regulatory provisions from the Civil Unions Act 2012 to ensure its operational consistency and effective implementation.

The bill will repeal the Civil Unions Act and transfer provisions dealing with ending a civil union to the Domestic Relationships Act 1994.

The bill will apply to all marriages between 2 adults that are not marriages within the meaning of the Commonwealth Act, and which are solemnised here in the ACT.

A person will be eligible to marry under the Marriage Equality Act only if:

  • they are an adult;
  • they are not married; 
  • they cannot marry their proposed spouse under the Commonwealth Act because that marriage would not be a marriage within the meaning of that Act; and
  • they do not have a prohibited relationship with their proposed spouse.

Marriages under the Act will begin in the same way as other marriages — with a notice of intention to marry, accompanied by evidence of identity and age, given to an authorised marriage celebrant.

Marriages under the Marriage Equality Act will be solemnised by authorised celebrants, on any day, at any time and at any place in the ACT.

Since our laws will provide for marriages to begin, they must also provide for marriages to end. 

Consistent with Commonwealth requirements, and marriage equality bills in Western Australia, South Australia and Victoria, the bill provides that an application for a dissolution order in relation to a marriage under the Marriage Equality Act must not be made within 2 years after the date of the marriage unless it is accompanied by evidence that the parties have considered reconciliation. 

The Supreme Court may give leave for the application to be made without evidence that the parties have considered reconciliation in special circumstances. 

The bill provides that an application for a dissolution order in relation to a marriage must be based only on the ground that the marriage has broken down irretrievably. 

Consequential amendments to the Domestic Relationships Act will extend the provisions in that Act for mediation and arbitration, adjustment of property interests and maintenance, domestic relationship agreements and termination agreements to marriages under the Marriage Equality Act. 

Madam Speaker, it is important to explain these core elements of the bill before I explain what this bill will not do.

The bill will not require a minister of religion to solemnise a marriage under this Act if the minister is not inclined to do so.  There is no compulsion or obligation on a priest or minister of religion, to solemnise a marriage under this bill. Freedom of religion is central also to a fair and just society.

However, the bill will provide for an authorised celebrant who is a minister of religion to solemnise a marriage according to any form or ceremony recognised by the religious body.

Only an authorised celebrant will be able to solemnise a marriage under the Marriage Equality Act.   If a priest or minister of religion's faith does not support the concept of same sex marriage, they are not compelled to perform them.  They are not required to become authorised celebrants under this Act.

The bill does not prevent 2 people who are already parties to a valid marriage under the Marriage Equality Act going through a later religious ceremony with each other.

A minister of religion will not be required to make a place (such as a church) available for a marriage or second ceremony under the Marriage Equality Act.

Madam Speaker this bill does not include a residency requirement.

This means that any couple who satisfies the other eligibility requirements for marriage will be eligible to marry under the Marriage Equality Act.

While other jurisdictions have included residency requirements in their bills, the position of the Government is that the application of a geographical restriction is not consistent with equality.  We cannot purport to promote equality but then restrict that equality to permanent residents of the Territory. 

Couples who wish to marry in the ACT will still need to travel to the ACT to satisfy notice requirements.

It is the case that marriages solemnised under the Marriage Equality Act may not be recognised outside the ACT.  At this time no other Australian jurisdiction has enacted marriage equality laws, and there is no express provision for an external jurisdiction to recognise an ACT marriage. 

I do not expect this will discourage couples from choosing to be married in the ACT.   Currently many same sex couples are already travelling overseas to marry under foreign marriage equality laws, knowing that their marriage is not recognised under Australian law.

The Government has closely considered the constitutional questions and implications of ths bill.

There is a view that marriage is a federal issue alone, and a matter that only the Federal Government and Parliament has jurisdiction over.  The Government agrees that it is preferable for the Commonwealth Marriage Act to be amended to provide for same sex marriage for all Australians.   Yet the Federal Parliament is deadlocked, and the new Federal Government appears to have no appetitie to allow such a reform to progress. In the context then of our Federation it falls on the states and territories to act.

New South Wales, South Australia, Tasmania, Victoria and Western Australia have all seen  marriage equality bills introduced into their parliaments.

The New South Wales Parliaments Standing Committee on Social Issues has stated that there is no doubt that New South Wales ( and by extensions other States and Territories)  can legislate for same sex marriage.

In its report on same sex marriage in New South Wales, the Committee stated that section 52 of the Constitution provides the Federal Parliament with exclusive powers over various matters.  Section 51 of the Constitution grants the Federal Parliament powers that it holds concurrently with the States.  The power to regulate marriage sits in section 51 of the Constitution and is therefore a power held by both the Commonwealth and the States.

Concurrent powers are to be exercised consistently, so the Constitution provides at section 109 that 'where a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid'.

The Australian Capital Territory  however faces a different test, under section 28 of the Australian Capital Territory (Self-Government) Act 1988. 

Under the Self-Government Act, 'a provision of an Act has no effect to the extent that it is inconsistent with a law of the Commonwealth, but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law'. 

This Act provides for a scheme that permits same sex couples to enter into a marriage under the Marriage Equality Act if they are ineligible to enter into a marriage as defined under the Commonwealth Marriage Act.

The ACT Act is therefore capable of operating concurrently with the Commonwealth law. The ACT law providing for marriage for same sex couples, and Commonwealth law providing for the marriage of opposite sex couples.

However this is a complex and difficult area of law, but difficulty and complexity must not be excuses for inaction. 

Professor George Williams, Anthony Mason Professor and Director of the Gilbert and Tobin Centre of Public Law at the University of New South Wales has said that if legal complexity was a genuine obstacle to legislating then many things would not get done in Parliament, that 'if a State believes in something for its community through its Parliament, you enact and work through the issues as best you can.  The complexity issue needs to be dealt with but, if that was a stumbling block, there are lots of things you would never do'.

This Government does not regard uncertainty as an excuse not to proceed. 

And the passage of this law will foster certainty in other ways — that gender and sexuality will not be grounds for discrimination of any kind in this Territory.

It is not a reason for us not to exercise our mandate to legislate for the Territory, for our community.

The 2011 Census estimates that there over 33,000 same-sex couples across Australia. Census data indicates that the ACT has the highest rates of both male and female same-sex couples of any state or territory. 

As legislators for our community therefore we have a duty to end discrimination against people who make up a significant proportion of our city. 

Madam Speaker we must acknowledge that there are members of our community who do not support same-sex marriage. 

Yet we must say to them that this law has no impact on them or their relationships.

No marriage is downgraded or reduced as a consequence of this law. 

No minister of religion will be required to solemnise a marriage ceremony under this law. 

No church or other place of worship will be required to be made available for marriage ceremonies under the Marriage Equality Act.

It is clear that society's expectation of marriage has changed over time. 

We acknowledged this with the introduction of no-fault divorce, we acknowledged it when we repealed the law that allowed the circumstances of marriage as a defence against the crime of rape. 

Our concept of marriage and what constitutes a valid and meaningful relationship has evolved as society has evolved. 

This law represents our evolution.

The possibility of a legal challenge does not diminish our duty to make this law. 

Neither does it lead to the conclusion that our law would be defeated.

This bill affirms that the love that exists outside binary human relationships is not less than the love between a man and a woman. 

Gender does not determine the value of a person and it must not be held to determine the value of a relationship. 

Our Human Rights Act provides that everyone has the right to recognition before the law. 

It affirms that everyone has the right to enjoy their human rights without distinction or discrimination of any kind. 

And it proclaims that everyone is equal before the law and is entitled to the equal protection of the law without discrimination.

On any ground.

I commend the bill to the Assembly.

 

 

- Statement ends -

Section: Simon Corbell, MLA | Media Releases

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taryn.bevege@act.gov.au


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