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Same sex, same rights

By Jonathan Wilkinson - posted Thursday, 22 June 2006

The ACT’s Civil Union Act has been defeated, but from the ashes new hope will arise for fair-minded Australians who believe that same-sex couples should have their relationships protected by law.

The Governor-General was ordered recently to invalidate the ACT’s Civil Unions Act at the behest of Federal Cabinet. A few days later the Senate narrowly staved off a motion to overturn this extraordinary abuse of executive power, exercised at the expense of the ACT’s authority to self-govern. Howard has won another battle, but this issue will not go away.

Now the hopes of fair-minded Australians turn to state governments to create laws which formalise the equal value and contribution of citizens in same-sex relationships.


Sooner or later the Bracks Government must take the next step on its commendable track record of legislating equality for same-sex couples in Victoria.

The 50-odd pieces of legislation amended in 2001 did almost everything possible in Victorian law to create legal equality for same-sex couples. Focussed largely on proprietary rights, the laws were criticised at the time for endorsing same-sex relationships.

But the government stood strong on its promise of equal justice for all citizens. Time tells us it did the right thing as nobody questions those laws today.

The question for the Victorian Parliament now is whether it should create a civil union scheme for same-sex couples.

The question is not whether gay marriage should be law. This is because the federal constitution covers the field of marriage. Therefore gay marriage is a question only for the Federal parliament, and not for debate in Victoria.

So what will a civil union scheme in Victoria achieve?


First, the legal definition of marriage remains “a union between a man and a woman” in Federal marriage law. Like marriage, civil unions are technically legal instruments, not religious ones. If couples choose to have a religious component to their ceremony that is their choice. But marriage remains untouched.

A civil union scheme in Victoria will only have legal effect in Victoria. It’s an opportunity for same-sex couples to access the same rights and responsibilities as any other loving and committed heterosexual couple in Victoria.

Because most of the remaining discrimination against same-sex couples occurs at a federal level (workplace leave, tax, social security, Medicare, superannuation, Comcare, pensions) a civil union scheme can only remove limited state discrimination. But it’s an important step to achieving uniform national recognition.

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About the Author

Jonathan Wilkinson is a law student at the University of Melbourne.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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