June 18

Marriage and the States and Territories

Senator Brown, the Leader of the Greens introduced a Bill to remove the power of the Governor-General (acting on advice) to disallow legislation made by the ACT Assembly.

This is the  Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010

The Senate Legal and Constitutional Affairs Legislation Committee  reported on the bill on 4 May 2011. The majority recommended the Senate pass the bill with amendments.  The Liberal Senators dissented strongly.

The government has yet to decide on whether it will support the bill. If the bill is passed, it will free the territories to legislate in controversial areas such as mandatory sentences, euthanasia and same- sex marriages.

….marriage power…


The current campaign to remove the Australian government's executive veto over laws passed by the ACT's Legislative Assembly is inexorably tied to same-sex marriage recognition, wrote Paul Kelly in The Australian (9/2/11). 

“If the ACT had the constitutional power to legislate for same-sex marriage then it would do so,” he says.

He adds that:

"Such a law would almost certainly be unconstitutional and Attorney-General Robert McClelland has been at pains to ensure that existing ACT laws do not infringe on the national government's marriage power under the Constitution".

The interpretation of the marriage power in the constitution and of marriage itself will of course finally depend on the High Court if any legislation is challenged. That a marriage necessarily means one between a man and a woman was no doubt the intention of the Founding Fathers.  But the "original intention" of the Founders will not bind the High Court.

…are territories entitled to be treated as states?…

(Continued below)

On this, Paul Kelly says:

"This reality is concealed by the form of the debate, notably the spurious assertion the ACT is entitled to "equal rights" with the states and, as a consequence, the "intolerable" national government veto power must be repealed.Like a row of donkeys, media commentators line up to repeat this nonsense…"

"The ACT is not a state. It is the creation of the national government and parliament, and its reason for existence is to provide the seat of national administration. The ACT lacks many privileges of the states guaranteed by the Constitution.

"The ACT has no claim to statehood. It never will be a state. Its constitutionally inferior status is enshrined for good reason. No amount of foot stamping by Stanhope or Canberra journalists will alter this truth.It means that while Australian citizens living in the ACT should be accorded the same political rights as other citizens, this does not gainsay the more limited nature of the ACT as a a self-governing entity whose originating purpose as a territory still remains."


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