The ACT government has introduced a bill into the ACT Legislative Assembly that proposes to create a new species of marriage in Australia. Almost instantly the prospect of the federal government taking action to overturn the law once it comes into effect was the subject of news attention. The constitutionally-minded turned their attention to the possibility and prospects of the High Court being called upon to determine the validity of this new form of marriage. See comments by Professor George Williams (also here) and Crispin Hull. We have previously noted that the ACT’s proposed laws depends on advice received from High Court Justice Gageler before he took on his current role.
The unstated purpose of the law is clearly to allow adults of the same sex to marry. However, from the way the bill is worded you would not realise this. The bill proposes to offer an ‘ACT marriage’ (my term) to adult couples who are unable to be married to each other under the Commonwealth’s Marriage Act 1961 (Cth) because their circumstances mean that they are unable to marry under the Commonwealth law (‘because it is not a marriage’ under the Commonwealth law). The words ‘same sex’ do not appear in the bill. Familial relatives will remain barred from marrying under the Commonwealth law and the Territory’s law.
The technical approach to the wording of the bill might mean that the law endures, at least until it reaches the High Court. As a Territory law, the Commonwealth Parliament can overturn it (the federal government can longer do this). The Labor Party’s shadow Attorney-General has suggested that it would vote en-bloc in response to the Territory’s laws ‘if it was somehow more technical’ than simply a same sex marriage law.
The explanatory memorandum to the bill positions the change in law as an advance in human rights protections for Australians, specifically those people in same sex relationships. In the explanatory memorandum: “The ACT Government considers that the right to equality and the right to protection from discrimination … requires the removal of barriers to full marriage equality”.
The effect of the bill will be that there will be three ways for people in the ACT to formally register their relationships with governments:
- Different sex or same sex couples can enter civil partnerships under the Domestic Relationships Act 1994 (ACT). No longer will they be able to enter civil unions.
- Different sex couples can be married under the Marriage Act 1961 (Cth).
- Same sex couples will be able to be married under the Marriage Equality Bill. They will be able to enter into an ‘ACT marriage’.
Moreover, the Marriage Equality Bill does not include the same territorial restrictions as the Domestic Relationships Act 1994 (ACT) or the Civil Unions Act 2012 (ACT), a law which will be repealed upon the enactment of the new law, so qualifying couples resident outside the ACT will be able to enter into an ‘ACT marriage’.