Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
Constitution is unambiguous in handing the right to make laws for the territories
to the Commonwealth:
The Parliament may make laws for the government of any territory surrendered
by any State to and accepted by the Commonwealth, or of any territory placed
by the Queen under the authority of and accepted by the Commonwealth, or
otherwise acquired by the Commonwealth, and may allow the representation of
such territory in either House of the Parliament to the extent and on the terms
which it thinks fit. 13
Two recent policy disputes – one now resolved, one ongoing – illustrate this limit
to territorial self-government.
Same-sex marriage and civil unions
In March 2004, the ACT proposed legislation to enable civil unions for samesex
couples. The legislation, which would permit civil unions to be conducted
by marriage celebrants and would give same-sex couples the same legal rights
and standing as heterosexual married couples, was vigorously opposed by the
then federal government under Prime Minister John Howard. The attorney-general
wrote to ACT Chief Minister Stanhope saying that, while the Commonwealth
considered the status of same-sex relationships to be within the jurisdiction of the
states and territories, it opposed any altering of the ‘status of marriage’. 14 Stanhope
responded by amending his proposed legislation so that civil unions could not
be performed by marriage celebrants, but the federal parliament, fearing that the
ACT’s legislation was a step towards legalising same-sex marriage, promptly
blockeditbyamendingtheMarriage Act 1961 (Cth) so that the definition of
‘marriage’ changed from ‘a union between two consenting adults’ to ‘a union
betweenonemanandonewoman’.
In 2013, under Chief Minister Katy Gallagher, the ACT passed the Marriage
Equality Bill 2013 (ACT) in defiance of the Commonwealth. 15 At the time, the chief
minister stated that:
We would prefer to see the federal parliament legislate for a nationally consistent
scheme, but in the absence of this we will act for the people of the ACT. The
Marriage Equality Bill 2013 will enable couples who are not able to marry under
the Commonwealth Marriage Act 1961 toenterintomarriageintheACT.It
will provide for solemnisation, eligibility, dissolution and annulment, regulatory
requirements and notice of intention in relation to same-sex marriages. 16
13 Constitution of Australia 2010, section 122.
14 Zanghellini 2007.
15 Karvelas 2013.
16 Gallagher, quoted in Karvelas 2013.
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