Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

I rise tonight to return to an issue that was before the Senate earlier today, not so much to reprise argu­ments that were well ventilated at that time but to throw some important light on issues which may have been unclear or even confusing to senators involved in that debate. I am referring to the debate on Senator Brown's disallowance legislation with regard to the Northern Territory and the ACT. Senator Brown's bill was purportedly about preventing a Commonwealth minister from disallowing legislation of either the Northern Territory or the ACT by virtue of having signed an instrument of the Commonwealth. The effect of that legislation, as Senator Brown himself described, is quite straight­forward: to allow the territories to enjoy the same rights with respect to the passing of their laws which the states already enjoy. My party, the Liberal Party—the coalition—made it clear we objected to that because we believe that it was legislation which was undertaken in the absence of a compre­hensive assessment of what the needs were of the self-governing regimes of the two territories and was blind to many questions about the state of those regimes and how they need to be reformed systematically and not on a piecemeal basis.

I am particularly concerned about the fate of the amendment that was moved by Senator Brandis in the course of that debate during the committee stage. Senator Brandis moved an amendment which would have had the effect of saying that the power of the territories to enact laws was not provided for on the basis that the enactment was incon­sistent with the law of the Common­wealth. That was further illustrated by the sentence:

Without limiting the application of this subsection, the Assembly may not enact any law that is inconsistent with the Marriage Act 1961.

Senators will be aware that there has been heated debate about whether Senator Brown's legislation was some kind of stalking horse for enacting same-sex marriage legislation. Without canvassing whether that was or was not the purpose of Senator Brown's bill, the fact that the Senate chose to reject Senator Brandis's amendment to clarify that question is disturbing and leaves this question in some considerable doubt.

Aware that the comments of senators may be taken into account when interpreting legislation passed by the Senate, it is instructive to look at what Senator Brown himself had to say when this amendment was rejected. He said that Senator Brandis's amendments 'run totally contrary to the spirit of the legislation that is before the chamber'. He went on to say—in my view somewhat ominously:

I have explained that euthanasia is prohibited by legislation through this parliament, but the matter of marriage is not.

It seems to me that Senator Brown was foreshadowing that it is not possible for a territory parliament to enact laws in respect of euthanasia because the federal parliament has expressly enacted that a territory parliament may not do that, but when it came to the question of marriage he drew a distinction and said that it is possible for a matter of marriage to be legislated for by a territory parliament. There is at least quite a respectable argument that the Commonwealth Marriage Act, particularly the amendments that were moved by the Howard government in 2004, leaves open the question of whether it is possible for a territory parliament to legislate with respect to the marriage of people of the same sex.

That is an issue that has been canvassed by Professor George Williams. His argument is that the amendments moved in 2004 effectively characterise what may be done with respect to marriage between people of opposite genders but leaves open the question of what may be done with respect to the marriage of people of the same sex. As I understand it, he argues that it is possible for a territory law to be passed which provides for the marriage of people of the same sex because that is not covered by the legislation that was amended by the Commonwealth in 2004.

Senator Brown gave comfort to that interpretation by what he had to say about the situation of marriage and euthanasia being different. I would have thought that what Senator Brown said by those remarks in today's debate made it perfectly clear that he envisages the possibility of the question of marriage between people of the same sex being canvassed in legislation by the two territory parliaments. He acknowledges that that cannot happen with respect to euthanasia because that is expressly prohibited by legislation of this parliament, but he leaves open the question of whether marriage can be treated differently. With the greatest respect, I think the failure of the Senate to carry Senator Brandis's amendment does indeed leave that question wide open, and that concerns me enormously.

We do not know precisely and in much detail what the government's arguments were with respect to Senator Brandis's amend­ments, because, before the minister at the table—I think Senator Sherry—had an opportunity to put the government's position in the course of the debate about those amendments, Senator Brown moved that the debate be gagged, that the question be put immediately. So at that point in the debate there was no opportunity to put the argu­ment. I understand that Senator Sherry subsequently indicated that there had been an opinion from the Attorney-General on this question. It was obviously a very rushed opinion because it only arrived a few minutes after the actual amendment had been tabled by Senator Brandis. But if that opinion was dependent on the view that the Commonwealth covered the field with respect to marriage with its 2004 amend­ments, then it ought to be understood by honourable senators that that view is one that is probably not shared by eminent constitutional scholars such as Professor George Williams, who I think has argued that the Commonwealth did not effectively cover the field with its amendments in 2004.

So I think it is more than fair to describe this question as being an open question. If it were to be the case that a territory parliament wished to return to this question and legislate in that respect, in an area where there was some considerable amount of grey—that is, where a civil union becomes a marriage—then, by virtue of the passage of the legislation which went through the Senate today, it would be easier for that to occur and harder for the Commonwealth to intervene to prevent that from being carried forward. If a territory parliament were to legislate for some kind of marriage, to use Senator Brown's words, it would not be possible for a federal minister to disallow that legislation by virtue of the stroke of a pen, as was the case before this legislation, before this amendment of Senator Brown. It would be necessary for the parliament as a whole to come together to overturn such legislation if it felt it was inconsistent with its own powers with respect to marriage.

I do not want to sound like a Cassandra, but I think it is important that this issue be addressed and I think, with great respect, we have not properly considered this matter in the course of today's debate and we need to come back and consider it properly.