George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I understood that there were some government amendments. I have committee stage amendments as well which are about to be circulated in the chamber. I respectfully suggest that we deal firstly with the government's amendments, which I think are uncontroversial. I do not know whether the opposition's amendments will be controversial or not.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

I am happy to deal with our amendments, but I understand there are some Greens amendments and that they are going to be withdrawn. Perhaps we could sort out the status of those first because they are first on the running sheet I have.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

As I indicated in my second reading contri­bution, we will not be moving those amend­ments because the government's amendments are the same—drafted a little better, I might add, because they came after the committee's report. So we will be supporting the govern­ment's amendments to the same effect.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

Thank you. We will now deal with the government's amendments that have been circulated. I do not want to be accused of speaking too long. Are we going to get a copy of the opposition amendments, Senator Brandis?

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

They will be circulated momentarily.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (4) on sheet CD216:

(1)   Title, page 1 (lines 3 and 4), omit "or amend any Act of the Legislative Assembly of the Australian Capital Territory", substitute "or recommend amendments of enactments of the Australian Capital Territory or laws of the Northern Territory".

(2)   Clause 1, page 1 (lines 7 to 10), omit the clause, substitute:

1 Short title

     This Act may be cited as the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011.

(3)   Clause 4, page 2 (lines 9 to 18), omit the clause, substitute:

4 Objects of Act

     The objects of this Act are:   (a)   to remove the Governor-General's power, under section 35 of the Australian Capital Territory (Self-Government) Act 1988,to disallow an enactment (or part of an enactment) of the Legislative Assembly for the Australian Capital Territory or to recommend amendments of any enactments; and   (b)   to remove the Governor-General's power, under section 9 of the Northern Territory (Self-Government) Act 1978,to disallow a law (or part of a law) of the Legislative Assembly of the Northern Territory or to recommend amendments of any laws of the Northern Territory.

(4)   Page 3 (after line 5), at the end of the Bill, add:

Schedule 2—Amendment of the Northern Territory (Self-Government) Act 1978

1 Section 9

Repeal the section.

2 Section 10

Omit "or disallows a law or part of a law".

3 Section 10

Omit ", or for the disallowance, as the case may be,".

4 Section 10

Omit "or the date of the disallowance, as the case may be".

As Senator Brown has referred to, and as I referred to in passing in my second reading speech, we have had the Senate Legal and Constitutional Affairs Legislation Committee report and the amendments reflect the issues raised in the report. We note that the private senator's bill was referred to the Senate Legal and Constitutional Affairs Legislation Com­mittee for consideration on 2 March 2011. While the Senate committee strongly suppor­ted the removal of the Commonwealth's power to disallow ACT amendments and Northern Territory laws, the committee suggested amendments to the bills and consistent with the recommendations of that report of 4 May the government moved the amendments that have been circulated to the Senate.

The main purpose of the government's amendments are to include a schedule amending the Northern Territory (Self-Government) Act 1978 to remove the Governor-General's power to disallow laws of the Northern Territory Legislative Assem­bly. There is an amendment to exclude Norfolk Island from the operation of the bill. The government amendments to the dis­allowance bill will exclude application of the bill to Norfolk Island. As the committee noted, Norfolk Island's population is on a very different scale to that of the ACT and the Northern Territory. The passage of the Territories Law Reform Act 2010 provides the Commonwealth with increased oversight of Norfolk Island legislation to ensure it is consistent with the national interest. It would therefore be inconsistent for the disallowance bill to apply to Norfolk Island. The amend­ment to the disallowance bill would also remove from clause 4 words that purport to confer 'exclusive legislative authority and responsibility for making laws' on the ACT. As noted by the Senate committee, that is a significant misstatement of the law, apparently, as the Commonwealth's plenary power under section 122 of the Constitution to make laws 'for the government of any territory' will remain unchanged. The government's amendments would change clause 4 to more accurately reflect the current power of the Governor-General to recommend amendments to ACT enactments and Northern Territory laws. Those are the reasons for the government's amendments that we are considering in committee.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

On behalf of the opposition, I indicate that the opposition agrees with the amendment to exclude Norfolk Island from the operation of the bill for reasons that I outlined in my speech on the second reading. We do not agree with the extension of the operation of the bill to the Northern Territory because we do not agree with the principle of the bill at all for the reasons I explained.

Question agreed to.

We have opposition amendments that are about to be circulated, and I apologise that they have not been circulated already, but I will just foreshadow what they are. The effect of the amendments would be to add the words, at the end of the principal operative provision of the bill, 'if the enactment is inconsistent with a law of the Commonwealth' and to add the further sentence, 'Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961.'

The purpose of the opposition's committee stage amendments is to do two things. First of all, it corrects an anomaly that would appear in the bill were it to be carried in its current form—that is, as honourable senators should know, under the combined effects of sections 51 and 109 of the Constitution the states may not legislate in areas reserved for the legislative power of the Commonwealth if there is an inconsistency between a Commonwealth law passed under one of the section 51 heads of power and a state law. That inconsistency can arise in one of two principal ways. There may be a direct incon­sistency—for example, if there were to be a Commonwealth law passed under a section 51 head of power which provided to a certain effect and a state law on the same topic which provided to the opposite effect. As honourable senators should know, that is the plainest case of inconsistency under section 109 of the Constitution, and as a result of the operation of that provision the state law would be struck down.

But very commonly a state law is found to be inconsistent with a Commonwealth law not because of a direct inconsistency but because the Commonwealth law—to use the phrase that the High Court uses—covers the field. So if, for example, the Commonwealth were to pass a law under a section 51 head of power which was intended to be comprehen­sive in relation to that particular topic, then an inconsistent state law, or a state law which sought to regulate the same topic in a manner at variance from the manner in which the Commonwealth law sought to regulate the topic, would also be struck down under section 109 because the Common­wealth law would be considered to cover the field. We in the coalition consider that the Marriage Act is such a law, although I acknowledge that that proposition is contro­versial and that some, including Professor George Williams, have opined that that is not the case, particularly in relation to same-sex marriage.

If this bill were to be passed in its existing form, without the qualification the opposition seeks to introduce, we would have the unusual situation that the territories would have broader legislative powers than the states because section 109 of the Constitution applies to state laws, not to territory laws. So the device of this amendment is to apply the same test to territory laws as section 109 of the Constitution imposes upon state laws. There is a controversy about the reach of the Marriage Act 1961 and, in particular, the reach of the 2004 amendments to the Marriage Act introduced by the Howard government—with the support at the time of the Labor Party, I might say—which introduced section 88EA into the Marriage Act which prohibited same-sex marriage. The qualifying words of the opposition's amendments, which are really inserted out of abundant caution, are to make it perfectly clear that an inconsistency between a territory law in relation to marriage and the Marriage Act will result in the Marriage Act prevailing. The better view, in my respectful opinion, is, as I said earlier, that the Commonwealth Marriage Act covers the field in relation to marriage, and that is the view of most constitutional lawyers. There is a minority view that it does not. In order to deal with the possibility—argued for, for example, by Professor George Williams—that the Marriage Act does not effectively prohibit same-sex marriage, these additional words are introduced to ensure that no territory law may be inconsistent with any provision of the Marriage Act, including in particular, though it is not set out specifically, section 88EA. That is the reason for the opposition amendments.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens will not be supporting these amendments. You can see from the process in committee that this is not an eleventh-hour amendment; this is a twelfth-hour amend­ment after a process was put in place that a week's notice be available for private members' time legislation so that parties could get their act into gear. Not only that; it has been known for many months, in fact since last year, that this legislation was coming down the line. Here we have the opposition, through Senator Brandis, bringing in amendments which were not circulated, have not been notified and which are an afterthought. They are so important to the opposition that they are an afterthought in the wake of huge publicity and a committee investigation into this matter!

Let us look at Senator Brandis's amendments, which have now been circu­lated in the wake of his submission, and see what they do. They run totally contrary to the spirit of the legislation that is before the chamber. Senator Humphries may agree with them, but again they cut down the effort—talk of equal rights here!—to give equal rights to the voters of the territories, as against those of the states, in all matters as far as possible. I have explained that euthan­asia is prohibited by legislation through this parliament, but the matter of marriage is not. What Senator Brandis is arguing is that we should, on the very day we are trying to enhance and make more equal the rights of the voters of the Northern Territory and the Australian Capital Territory, bring in a provision that cuts down those rights in the matter of marriage—because it will be a prohibition that is not there in state law.

The whole thrust of this legislation is to give the territory assemblies, as far as is practicable, the same rights to pass laws for their citizens as the state assemblies have. It is as simple as that. So this is a last-minute effort to pre-empt that principle of democracy. I am surprised that Senator Humphries—and presumably Mr Sezelja, the Leader of the Opposition in the Australian Capital Territory is in very direct commun­ion with Senator Humphries on this matter—wants to cut down the rights of the people of the ACT to deal with marriage laws in ways that are not any different from those of the states. This cuts across the whole principle of the legislation. The Greens will not be supporting it.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Senator Bob Brown has just exposed, for all of us to see, what this is all about. The Labor Party caucus has been deceived. The Labor Party caucus agreed to support this legislation on the basis that it would not lead to legalisation of same-sex marriage in the nation's capital. The Labor Party caucus adopted support for this bill—and without controversy, it was reported—because members were assured it was not about same-sex marriage.

In his contribution just now Senator Brown indicated that the Greens would not support the very sensible amendments that are being put forward by Senator Brandis, amendments which would ensure that the assurances given to Labor Party members and senators would be enshrined in this legislation. Here it is; we can see very well what this is about. The Labor Party has been deceived. Of course we are not surprised that the Greens will not support these amend­ments. But if the Labor Party is true to the assurances that were given to members and senators in the ALP caucus then the Labor Party should support the amendments that will be moved by Senator Brandis on behalf of the coalition.

At the end of the day, we always knew that this bill was not about improving self-governance arrangements for the ACT or the Northern Territory. This bill is about promoting the cause of same-sex marriage, because Senator Brown knows that the best chance of getting this passed in any jurisdiction is by facilitating it, enabling it to happen, in a territory parliament. We heard: 'No, no, no—this is about improving the democratic rights of territorians. It has nothing to do with same-sex marriage. You want a guarantee that this is not about same-sex marriage? We are going to give it to you.' Katy Gallagher, the ACT Chief Minister, was not prepared to give that guarantee. She declined to comment when she was asked whether the territory would use this bill to pursue same-sex marriage. But Senator Brown has let the cat out of the bag. Senator Brown, in his contribution to the motion foreshadowed by Senator Brandis, has made it very clear what this bill is all about. All this amendment does is enshrine in legislation the guarantees that were given to the Labor Party caucus so that the Labor Party caucus became comfortable to support a Greens initiated bill.

I say again: this is all about the Green tail wagging the Labor Party dog. This all about a Prime Minister who is too weak to stand up to Senator Brown. This is about a Labor Party caucus that is too weak to stand up to the Greens agenda, which many of them do not support. This is all about hanging on to government by the fingernails at any cost. This is a government that is prepared to compromise anything they stand for if it helps them to stay in government.

If the Labor Party wants to keep any semblance of political integrity in this debate, it will support this amendment because all this amendment does is enshrine in this bill the promise that was made to the Labor Party caucus about what this legislation would do and what it would not do. Labor Party members and senators were told that what it would not do is lead to same-sex marriage in the nation's capital. Senator Brown has just said that he does not want this bill to be amended such that same-sex marriage in the nation's capital would be prevented from going ahead.

It was the coalition that included the definition of marriage in the Marriage Act 1961 in 2004, the definition being that marriage is the union of a man and a woman to the exclusion of all others voluntarily entered into for life. That is the definition which the Prime Minister tells us publicly she supports, but then she is too weak in the context of this legislation to stand up for the principle she supposedly supports. If the Labor Party is serious about complying with the promise that was made to its members and senators in order to get this bill through its caucus, then the Labor Party will support this very sensible and very important amendment.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

To add to Senator Cormann's words, Senator Brown has now been found out. He has been smoked out. He said throughout the course of this debate that this was only about giving territorians equal rights. He now rises to object to an amend­ment, the purpose of which was to say that the same principles that apply to the citizens of states by operation of section 109 of the Constitution should apply to citizens of territories.

If Senator Brown's claims to believe in the equality of citizens were true, he would support this amendment. The fact that he objects to it reveals all. Senator Brown and others in the Labor Party have also said this is not about gay marriage, which is why we have included those words specifically, insisting that the territory may not pass a law inconsistent with the Marriage Act 1961. Senator Brown objects to that, too. Why would you object to that, Senator Brown, if gay marriage were not what this bill is all about?

I move:

(1)   Schedule 1, item 1, page 3 (lines 4 and 5), omit the item, substitute:

1 At the end of subsection 35(2)

Add "if the enactment is inconsistent with a law of the Commonwealth. Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961".

(2)   Schedule 2, omit item 1, substitute:

1 At the end of subsection 9(1)

Add "if the law or the part of the law is inconsistent with a law of the Commonwealth. Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961".

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am mindful of the time and I move:

That the question be now put.

Question agreed to.

Original question put.

That the amendments (Senator Brandis’s) be agreed to.

The committee divided. [11:39]

(The Chairman—Senator Parry)

Question negatived.

Bill, as amended, agreed to

Bill reported with amendments and an amendment to the title; report adopted.