“The ACT government says it will introduce legislation to change the meaning of marriage on Thursday – but our legal advice indicates that the Territory lacks the constitutional power to do so,” FamilyVoice Australia research officer Ros Phillips said today. “A law of this nature would be contrary to the ACT’s founding legislation – the Australian Capital Territory (Self Government) Act 1988 – as well as the Australian Constitution.
“When the federal Marriage Act was passed in 1961, it invalidated the different state marriage laws – providing a marriage code for the entire nation. There’s not much point in being legally married in Canberra but unmarried after driving a short distance across the border to Queanbeyan or Bungendore!” Ros Phillips said.
The Marriage Act did not include a specific section defining marriage in 1961, but the common law meaning of marriage was included in section 46. This section required a marriage celebrant to state that “marriage according to the law of Australia is the union between a man and a woman to the exclusion of all others voluntarily entered into for life”. The Marriage Amendment Act 2004 passed with bipartisan support. It reaffirmed the 1961 Act’s man-woman meaning of marriage, and prohibited the recognition of foreign “same sex marriages”. The Marriage Act thus makes it very clear that “marriage” throughout Australia refers to man-woman unions, not same-sex unions.
Ros Phillips said that some people say states and territories can enact “same sex marriage” laws – because such unions are not “marriages”, but a different kind of union called a “same sex marriage”.
As such, under federal law they would not be treated as marriages, but de facto relationships.
Professor Patrick Parkinson pointed out in a letter published in the Sydney Morning Herald (29/7/13) that same sex couples who marry under a state or territory “same sex marriage” law would face some very complex legal problems.
The professor said that regardless on one’s general position on this issue, “it is not… a morally responsible position ... to offer a form of ‘marriage’ which will necessarily be different from the marriages that heterosexual couples have.”
“The ACT Attorney-General Simon Corbell should abandon his plan to introduce such a bill,” Ros Phillips said.
- Marriage and sexuality