The Marriage Equality Act 2013 (aka ACT’s same sex marriage law), drafted by the ACT Labor Government, has caused a stir! For now at least, same sex couples in the ACT can get married. The legislation provides an avenue for marriage for those who cannot be married under the Commonwealth’s Marriage Act 1961. Wait what…?
What does the Marriage Act say?
The Marriage Act defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’
The Marriage Act then shifts the focus from who can marry but rather who can solemnise a marriage.
There has been a lot of interesting case law surrounding what the Act means by the terms “man” and “woman”, which is particularly relevant for transsexual/transgender people.
So how is the ACT’s Marriage Equality different?
The Marriage Equality Act shifts the focus back to who can marry. It says that a person can marry if they are an adult and not already legally married and they cannot marry under the Marriage Act. This provides avenue for same sex marriage in the ACT.
So what’s all the fuss?
The Commonwealth isn’t supportive of the Territory’s proposed legislation and will be challenging the legislation on the basis that it is unconstitutional. But what does this actually mean?
The Commonwealth Constitution says that the Commonwealth can legislate on certain things (they have a list) and marriage is one of them. The Constitution also says that if the Commonwealth has passed legislation about one of its listed topics (in this case marriage) then the States and Territories can’t. The States are allowed to legislate on everything else that isn’t on the Commonwealth’s list, these are called ‘Plenary Powers’. Still following?
To make things a bit more complicated, because the ACT is a Territory and not a State, the Commonwealth has Plenary Powers for the Territories. BUT the Commonwealth was kind enough to delegate these powers back to the ACT under the ACT Self-Government Act. What this means is that the ACT Legislative Assembly can legislate on all things that isn’t in the Commonwealth’s list of topics, the Territories are no longer the weaker little brother.
But didn’t the ACT try to pass same sex marriage laws before?
Yes. Until 2011 the Commonwealth had a power of veto over any ACT law. That’s what the Howard Government used with the ACT last tried to pass a same-sex marriage Act. Since 2011 however there is no veto power. Clear as mud? Hang in there.
So is the ACT Marriage Equality Act unconstitutional?
Well…
The Commonwealth Marriage Act says that marriage is between a man and a woman. So let’s call that a ‘Commonwealth Marriage’. So the Commonwealth says that marriage is one of its listed topics and it has legislated about it so the ACT can’t. BUT The ACT is saying that their ‘marriage’ is different – it’s between a man and a man or a woman and a woman. Let’s call that ‘ACT marriage’. The ACT says that that’s a different topic which the Commonwealth hasn’t dealt with so the Nation’s Capital can. So Commonwealth Marriage ≠ ACT marriage. Clever huh?
So, what’s next?
Well, the Commonwealth Government has mounted a High Court challenge to the Territory’s Act. The Commonwealth is going to say, essentially, don’t be cheeky, calling a mouse a rabbit doesn’t make it one. Even sticking long ears and a fluffy tail on it just won’t cut it. The Territory will say that they’re not calling it a rabbit, and it’s not a mouse. It’s a whole new creature no one has ever seen before. We’ll have to see what the High Court says.
A final thought
People have strong views about marriage – who should get married, whether anyone should get married, whether divorce is always bad, etc. There’s something to be said for it though – it’s like being pregnant, you either are or your not, and most people have some idea about what being married means legally.
De facto relationships are much harder – lots of people don’t even know if their in a de facto relationship or what that means legally for them. Worried? Check out our previous blog post for some tips: https://www.fgd.com.au/blog/when-are-you-in-a-relationship.
In the meantime, feel free to let us know what you think about all of this.
By Sarah Keenan