The destructive cycle of federal intervention

Until 2004, it was arguable that the federal marriage law was so broad that it covered the field with regard to marriage so as to leave no room at all for state or territory laws. However, amendments that year by the Howard government made it absolutely clear that Commonwealth law should be taken only to extend to marriage for people of different sexes and not at all to same-sex partnerships. It now provides that ''marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life''.

By setting out so clearly the only type of marriage to fall under federal law, the change ironically created an opening for state and territory laws on other forms of marriage. The ACT civil unions law, which would have recognised and allowed people to celebrate same-sex relationships though not same-sex marriage, would have fallen into this gap. If the Commonwealth had taken the ACT law to the High Court, the outcome would likely have been that both could stand with no inconsistency between them.

It will be interesting to see if any state takes the opportunity to legislate not just for civil unions with public ceremonies, but same-sex marriage. The Federal Government would not have the easy option of vetoing such a law. Although Australia is some way off from recognising any form of same-sex marriage, other nations have already gone down this path, including Canada, South Africa, Spain and some parts of the United States. The ACT civil union move was modest by such standards, and would have been seen in many other nations as simply catching up with a position reached some years ago.

With the benefit of hindsight, it might be argued that the Stanhope Government adopted a misconceived strategy. Rather than putting civil unions back on the agenda so soon after the federal election, it might have first sought to secure reform of its self-governance arrangements. This could have cleared the way for a civil unions law of its own design in the future.

However, the Stanhope Government cannot be faulted for pursuing the path it did when, soon after the 2007 election, Prime Minister Kevin Rudd said he would not override ACT legislation allowing for civil unions because it was a matter for states and territories. ''On these matters, states and territories are answerable to their own jurisdictions,'' he said. Given these statements, it came as a major shock to see the ACT's attempt to legislate for its own citizens so quickly repelled.

What was left was for the ACT Government to accept a civil unions law on terms determined by the Federal Government. This was a better outcome than no law at all. The amended Bill was passed in the Assembly early yesterday morning. With the issue now resolved, the Stanhope Government must seek to take the Commonwealth back to the drawing board when it comes to self-government.

This episode has exposed problems that must be addressed before they defeat other important initiatives by the ACT parliament. It is time the fundamentals were re-examined, and changes made to break a destructive cycle of federal intervention that undermines ACT self-government and democracy.