Senator GALLAGHER: The Australian community has voted overwhelmingly to remove discrimination from marriage and to support equality, and now it is time for the Australian parliament to act and reflect that will of the Australian people in the bill that we are debating today. I’m not going to speak for too long, but I wanted to concentrate my remarks on the history of the equality campaign here in the ACT that I’ve now been involved in for more than 15 years. I think it is somewhat appropriate that we are debating this legislation here in Canberra which, whilst it is the nation’s capital, the seat of government and the place where politics happen, is also a very strong and supportive community and town which has fought very hard to ensure that there is equality across the statute book and that all members of our community are treated equally.
I’ll start by acknowledging that the ACT community in the recent same-sex marriage survey—and that includes Norfolk Island and Jervis Bay, for whom I am a proud senator—achieved both the highest jurisdictional result from the survey, with a 74 per cent ‘yes’ vote, and the highest response rate, at 82.4 per cent. In total, 236,979 people from the electorates of Fenner and Canberra completed their survey, with 175,459 voting ‘yes’ and 61,520 voting ‘no’. This result did not surprise me at all. As thousands gathered in Braddon on the night of the 15 November to celebrate the success of the ‘yes’ campaign, it struck me just how long the campaign for equality has been running here locally and how many community events, rallies and meetings I’ve gone to over the years to progress marriage equality.
For me the majority of my involvement in this campaign has been during my years as a territory MLA, where a commitment to removing discrimination on the basis of sexuality from the ACT statute book was an election campaign back in 2001 in the very first campaign in which I stood as a candidate for Labor. Labor won that campaign and we began the work of amending various laws to remove discrimination against LGBTIQ people, their partners and their children in all ACT laws. This included various laws such as the Discrimination Amendment Act, the Parentage Act, the Sexuality Discrimination Legislation Amendment Act, the Human Rights Act and the Adoption Amendment Act.
In the second Stanhope Labor government we took a commitment to the 2004 election to establish civil unions for same-sex and other couples to provide equal and legal recognition with marriage under ACT law. The bill was called the Civil Unions Bill 2006 and it caused controversy at the time, particularly for the Howard government. Even though this was a clear election commitment from Labor prior to the election and it was an election where we won majority government for the first time in the history of self-government, the Howard government, with the then Attorney-General Mr Ruddock, threatened to intervene and overrule the bill should it pass the assembly. It did pass in May 2006 despite the threats from the Commonwealth at the time and it came into force on 9 June 2006. Four days later, with the swipe of a ministerial pen, the democratic will of the people of the ACT was overruled when the Federal Executive Council asked the Governor-General to disallow the act.
Not to be deterred, several months later the ACT cabinet, of which I was a member, advised by the very capable Attorney-General Simon Corbell, agreed to introduce another bill to recognise same-sex couples with the Civil Partnership Bill 2006, which sought to provide the same legal protections and recognition as the Civil Unions Bill. Despite seeking to amend the laws to remove the word ‘union’ from the bill, as that had caused a lot of the concern with the Commonwealth, the Commonwealth, represented again by Attorney-General Ruddock, indicated that the proposed legislation opened the door to bigamy and contradicted the Marriage Act’s definition of marriage as being between a man and a woman. The Howard government threatened again to disallow the bill should it be passed into law. We took the decision at the time that as it was obvious that the Howard government were about to lose the federal election we would hold the bill over until after the federal campaign, when we hoped we’d have a more sympathetic government.
But even though the government did change in 2007, and whilst Prime Minister Rudd indicated that he would not override ACT legislation, the path to reaching agreement with the Commonwealth on a suitable bill that allowed the ACT Labor government to deliver on our commitment to the people of the ACT, whilst also being agreeable to the Rudd government, was not easy. Over several months the negotiations went back and forth and seemed to me to hinge on something so minor that I couldn’t, and still can’t, understand the strength of the Commonwealth’s views at the time—which, I should say, were immoveable. In the end the ACT compromised, as we felt that the need to put in place laws that allowed the recognition of same-sex couples was more important than passing laws that clearly would likely be disallowed for the second time in a year.
So, almost two years after we had started with the draft legislation of the Civil Unions Bill, the Civil Partnerships Act commenced on 19 May 2008. The sticking point of the legislative ceremonies was removed from the bill, with an administrative ceremony instead being performed by a representative of the ACT Registrar-General. Further amendments were made in 2009 to reinsert ceremonies to be conducted with civil partnerships, making the ACT the first territory in the country to legalise civil partnership ceremonies for same-sex couples. The Commonwealth continued to threaten to disallow the laws, but further amendments were made to address their major concerns, and the bill passed the assembly late in 2009.
In 2012, some six years after the original Civil Unions Bill passed the assembly, we continued our quest to ensure that same-sex couples were able to have their relationships recognised legally and to enjoy the same rights as people married under the Marriage Act. At the time, and based on legal advice that we had, the ACT government, of which I was now the Chief Minister, flagged our intention that we would work with Tasmania to progress same-sex marriage legislation, as it was clear certainly from all the discussions we had had that it was not going to happen nationally at that time. So Labor went to the 2012 election with a commitment to introduce a same-sex marriage bill into the assembly during the next term. We delivered on this commitment in 2013 when we introduced the Marriage Equality (Same Sex) Act 2013. I said at the time:
We’ve been pretty clear on this issue for some time now and there’s overwhelming community support for this.
Relevant to the debate we are having today in this place, I went on to say:
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.
This bill was debated in the ACT Legislative Assembly on 22 October 2013, more than four years ago now.
When the legislation came into effect on 7 December, 47 couples had registered their intention to marry. This was despite the very early announcement—even before the bills actually passed the assembly—from Senator Brandis that the Commonwealth was going to challenge the validity of the laws in the High Court. Thirty-one couples married over a five-day period, between 7 and 12 December, which was the date the High Court annulled the laws, finding that the ACT laws were inconsistent with the federal Marriage Act and that only the federal parliament could make laws in relation to marriage, with the judgement finding that:
… under the Constitution and federal law as it now stands, whether same-sex marriage should be provided for by law—
as a majority of the territory Legislative Assembly decided—
is a matter for the federal Parliament.
Over the almost four years since that decision I have often reflected on whether pursuing marriage equality on our own was the right course to take. I was very aware at the time that, whilst this was a legal battle between two governments, real people and families were caught in the middle. Those who had been married under our scheme would have their marriage annulled as though it had never existed, when it was clear to everybody who attended one of those ceremonies that the union did exist and that they did matter.
But overall, and on reflection, I believe it was the right thing to do. We had made a commitment to our community that we would ensure that every one of our citizens would be treated fairly and equally before the law. We stood up for that principle, and it’s an important principle which I support today.
For me, the most important thing that came out of the 2013 experience, aside from the happiness and love that we witnessed over those pretty intense weeks, was that we stood up for what was right, we stood up for the ACT. And, while we comprehensively lost in the High Court, we did end up with a very clear judgement which said any amendment to the Marriage Act is a matter for the federal parliament; it clarified that once and for all. And here we are today—no more obfuscation, no more avoiding—doing what we should have done years ago. Thanks to the direction of the High Court, we are here doing what only this parliament can do. I’m proud of the role the ACT Legislative Assembly, the smallest parliament, has played in getting us to where we are today. It’s taken 16 years, and we never took a step back. But now, from the smallest parliament to the largest, it’s time to get this done. Thank you.
Chamber Senate on 27/11/2017 Item BILLS – Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – Second Reading Speaker: Gallagher, Sen Katy /Source: Parliament of Australia Website 2017 Transcript and Photo used for reporting News (CC Copyright Information)