Two quick comments about the ACT civil unions law (Mark I), recently overturned by the Federal Government.

Firstly, here is how Federal Attorney-General Phillip Ruddock’s reaction was reported when the bill was passed on 11 May 2006:

The bill had been hugely controversial, with … Ruddock at one point threatening to use Commonwealth powers to stomp on the law.

But this morning, after the legislation was passed by the ACT last night, his spokesman said Mr Ruddock was happy with amendments made to the original bill … However, [the spokesman] warned Mr Ruddock would still look closely at all the details to ensure the legislation doesn’t conflict with Commonwealth law. (’Gay groups applaud ACT civil union bill’, AAP, 12 May 2006)

So what made Ruddock change his tune? Religious Right sources are sharing the ‘credit’ between the Australian Christian Lobby’s Jim Wallace and Tasmanian Liberal Senator Guy Barnett, both of whom hammered the government on this issue.

Secondly, Ruddock’s explanation for his decision seems to raise an important constitutional question - or might have if the ACT were a state. According to him, the Government decided to disallow the civil unions law because it was:

… deliberately intended to make the ACT arrangements as close as possible to marriage, when the marriage power is clearly vested in the Commonwealth. (Annabel Stafford ‘Commonwealth quashes ACT in battle over civil union laws’, Melbourne Age, 14 Jun. 2006)

Since when does the Constitution grant the Commonwealth power in any area that is merely ‘close to’ one of the heads of power? A civil union which is ‘as close as possible’ to a marriage - to use Ruddock’s own words - is by definition not a marriage at all. It is another form of relationship, and one that appears ultra vires vis-a-vis the Commonwealth’s marriage power.

Filed in: Sexuality