9 June 2006

Yo! Bum rush the show in ACT

| Ari
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The ACT Assembly has passed the legislation legalising same-sex civil unions.

By cutting back the required the notice period it’s hoping some couples will be able to get in quick before the Feds can react.

Does this mean there’ll be an interstate bum rush for Canberra couplings? (To paraphrase Public Enemy)

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James-T-Kirk4:10 pm 13 Jun 06


We didn’t want self government in the first place… Now the Feds have reminded us that if we piss them off, we actually don’t have it.

Bring back the NCDC… Get those antennas off the roofs, and make the bl$$$y streets wider if you have to !!!

The Fed AG’s argument that this is not an area that ACT can legislate is clearly wrong as the ACT did legislate in this area, this argument is just a guise for quashing the legislation for political reasons (ie pandering to the religious right) so the Fed AG argues that the ACT cannot legislate in this area in the hope that the uniformed public will accept it. To be found inconsistent with a fed leg there first has to be a piece of fed leg to be inconsistent with then the matter has to be taken to the courts and the courts rule on whether the state/territory leg is inconsistent or not, if this were not the case the Fed govt could just go around saying all leg is inconsistent with some Cth act or another and hence render it inoperative. If s109 is used the act is not rendered void ab initio it is just inactive to the extent of the inconsistency, and if the Cth leg it is inconsistent with is repealed then the state/territory act automatically resumes operation.

s35 Self Govt Act has nothing to do with s109 Const, it allows the Feds to quash any ACT legislation it feels like and it may do so on a mere whim.

There are none so blind as those who cannot see

That is simply the figleaf which the Government is attempting to use to hide their blatant trampling of the ACT’s right to self-determination.

Deciding whether or not a territory or state law is overruled by a Federal law is and always has been a matter for the High Court.

Jesus Christ Binker, read the news. Not your interpretation of it, but what it actually says.

Or, to quote news.com.au, the AGs issue was that the ACT Govt was delving into in area where they had no power to legislate.

I’m assuming you have no formal legal qualifications judging by the ineptitude of your arguments. Either that or you work for Legal Aid

Dude, you’re just not getting it, GG has not disallowed it as it is inconsistent with the Marriage Act, the GG doesn’t do that, inconsistency is for the courts to decide. And anyway as previously stated, it is not inconsistent with the Marriage Act as marriage is exclusively between man and woman and hence unions between same sex or obviously a separate issue.
The States are quite free to introduce Civil Union legislation and the Cth could do little about it.

The GG disallowed this in consultation with the Exec Council by virtue of the s35 ACT Self Gov Act 1988 Cth ( s35 found here http://www.austlii.edu.au/au/legis/cth/consol_act/acta1988482/s35.html) which is a Cth Act which is based squarely in s122 Const.

So yes, as everyone else did, you picked that the Cth would thwart the ACT legislation but the basis upon which you decided this was clearly wrong.

As the GG has now disallowed the ACT legislation, as it is inconsistent with the federal Marriage Act, I guess those who espoused how wrong myself, Thumper and others were will now apologise.

Get over it Sonic. The ACT is in financial disarray. Get that sorted then move onto issues like this.

Unbeliever this has nothing to do with discrimination, but more with the supremacy of the Commonwealth’s laws over those of the States/Territories. Something that holds this country together. This is all about a botched attempt at amateur headline grabbing and point scoring by a government that refuses to bite the bullet on agendas that affect EVERYONE, and continue to pander to an agenda that no-one understands.

I think the argument has been ended by the GG

Marriage is a union between a man and a woman= federal. Civil unions are principally about a union between a same sex couple= state and territory. Feds have no head of power to regulate civil unions in the states (but do in territories s122).

An example of the limitation on the Cth power regarding marriage is property settlement. Property settlement legislation for married couples is Cth legislation while by necessity property settlement legislation for de facto couples is State and territory legislation (as marriage does not include opposite sex de facto arrangements).

My point being the term “marriage” is quite strictly construed and hence the Cth does not have an obvious head of power that would cover regulation of same sex unions (except of course in the territories where s122 means that Cth can legislate about everything).

… and this isn’t about marriage per se, do try and keep up!

‘Lobby the Feds for real reform you morons.’? Vg.. what rights movement in history have you found to be homogenous in its approach to tackle discrimination? It’s simplistic and moronic to assert that the only lobbying being done by gay rights group is in the ACT. Of course lobbying is happening at the federal level… but that wouldn’t be a RiotACT-scope story.

And just to address the question about ‘the big issues and why this is being rammed down people’s throats’ – You may be in a ‘take it or leave it’ position when it comes to civil unions’, you may not be directly affected by all this talk of discrimination and unions…But this is a bigger issue than civil unions and marriage!

This is about whether as a society we’re willing to allow arbitrary and asinine discrimination against lesbians, gays, just because we want to pick and chose whose rights to protect and whose rights to reject.

And if you don’t understand that, I’d be worried about the kind of society you’re concerned about passing on to the next generation.

‘Student unions
Industrial unions
Civil unions
I’d be worried if I played rugby’ [last week SMH’

Bollocks Thumper, fixing discrimination in ACT laws is quite properly an ACT government responsibility.

Why can’t they just call it something else ?

I prefer the term ‘Gayiage’. It’s a marriage for gay people…

And I’ll believe in the sanctity of Gayiage when both partners can go down to Centrelink and get their benefits as a married couple would be entitled to, no sooner.

Last time I checked though, the Feds ran that department.

And I’ll pinch a quote from Bulldog (apologies matey) that far more succinctly sums up my opinion as well

“Someone explain how this is important when held up against the closure of schools, vast increases in the cost of living and the redundancy of 500 ACT public servants?

Like the dragway – this should be shitcanned because we have more pressing priorities. I am pro-gay marriage (even when they aren’t both hot chicks), as far as I’m concerned they’r entitled to the same rights I share with my wife. I don’t want to see an sixty-something dollar an hour MLA waste another taxpaying dollar or taxpayer funded minute on this, the dragway, the arboretum or the fucking centenary celebration until they can work on rectifying the shit state of affairs they have left us in. “

I guess that says it all

Constitutional bush lawyer….I like that one, inapt but likeable.

Either way the law is history. The ACT Govt has purported for the same sex unions to be the same as marriage. If that doesnt conflict with the Feds domain I’d be shocked.

I guess, with all the toing and froing, my point is there are far more important and salient things to be sorting out before this sort of thing. When the ACT goes cap in hand to the Feds for more money, constant idealogical clashes will get them nowhere. The counter-terrorism debacle by Stanhope only demonstrates that.

Once the ACT Govt has proven they can get their colelctive shit together they should then move onto other things, not before

s51(xxi) and s51(xxii) may have been used as the head for sections referring to spouses in various Cth Superannuation Acts (although highly unlikely as the head use for the rest of the leg would cover sections referring to spouses) but the point you want to make, and which is incorrect, is that these sections can be used in conjunction with s109 to invalidate the local civil union legislation, as same sex unions fall outside marriage or matrimonial causes.

Oh and another thing. If the ACT has the power to enact law on Civil Unions which they do, they should do so, regardless of whether the Commonwealth may or may not strike down. Love it or leave it mate.

Vg, it pains me to say this – ‘cause I am usually in agreement with your views, but I’m afraid to say your wrong.

Like most constitutional bush lawyers and other sundry drop kicks you appear to be under the impression that the ACT law will be struck down because it is in conflict with the Federal law – quite simply this is not an issue for the Federal government to resolve – we have a High Court for such matters. The issue here is that the Federal Government sees an opportunity for what to them appears to be quick and easy political point scoring.

They will strike down the law simply because the Constitution allows them to – the same way that it allows them to strike down any ACT legislation covering any matter, regardless of whether or not it is in conflict with Commonwealth law. End of story.


Nice, but very amateur, try at twisting my words. You will find the overriding concerns for same sex unions relate to access to superannuation funds etc etc. As the legislation relating to super refers to marriage vis a vis beneficiaries, you will find the marriage power comes into it somewhere. If a same sex union seeks to derive the rights of a marriage as per super issues, then the marriage power will come into it.

Either way the legislation will, as I have said, last as snappily as Poland at the World Cup.

Either way whatever the Feds have previously said re same sex unions had bipartisan support previously. The Comrade can’t even follow his own party’s line.

Yes, the issue may be of some inportance to a minority (and I am not discounting that in any way shape of form in a discriminatory fashion….I really dont care what people do in the privacy of their own lives in certain aspects) but f**k me, the ACT is in a collapsing black hole financially and in terms of its governance and this is one of their big issues?

Health, Schools, Law and Order, Roads and transport and then this maybe. Get off the mopral high horse Standope, some people are sick of this sh*t getting rammed down their throats (and pardon any pun anyone wants to interpret from that).

Get on with the big issues that affect everyone before you foist your lefty agenda once more Sonic

Rant ends

My bad. Therefore, neither the Commonwealth Legislature nor the High Court of Australia considers a same sex union as a marriage (or matrimonial cause).

vg, how about you wait and see which power the federal government uses to overturn the ACT law – dollars to doughnuts it won’t be the federal power over marriages, because that doesn’t apply, because the ACT legislation doesn’t have anything to do with marriages (it’s to do with the interpretation of other ACT legislation).

And if the federal government uses it’s general power over the territories, then your argument applies to ANY ACT legislation – so you’re basically saying the ACT government shouldn’t do anything at all because it could be overturned by the federal government.

I sure hope you’re not a practising lawyer, Binker. The double negative in your penultimate para appears to throw your whole argument into disarray – or at least, muddies it irretrievably.

s43(a) Family Law Act 1975 (Cth) “…marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life.”

This definition comes from Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 where Lord Penzance stated that “marriage as understood in Christendom, may for this purpose be defined as a voluntary union for life of one man and one woman to the exclusion of all others.”

Hyde v Hyde and Woodmansee has been approved by the High Court of Australia, two examples being Calverley v Green (1984), 155 CLR 242 at pp259-260 or more recently R v L (1991) 174 CLR 379 at 389.

For a detailed discussion of “marriage” see AG (Cth) v “Kevin and Jennifer” [2003] FamCA 94

So it would appear neither the Commonwealth Legislature nor the High Court of Australia have not, and would not (in the case of the HCA due to stare decisis), consider a same sex union as a marriage (or matrimonial cause).

Thus it is highly unlikely the Commonwealth could use ss51(xxi) or (xxii) Const. s122 Const is the most obvious head that the Commonwealth would use.

That will be washed away and forgotten

Good on the locals for having a go. It is grandstanding, but it’s also making a mark in the sand.

Its not what I understand of it that matters. It is how it is interpreted. They can say ‘different’ to marriage all they like, it means f all. What the Act says and how it will be interpreted, as already stated by many legal commentators, will be its downfall.

The legislation will last as long as Poland at the World Cup

vg, what part of “is different to a marriage” in section 5 of the Civil Unions Act don’t you understand?


Have a squizz at s51(xxi) and (xxii) of the Constitution. This gives the Federal govt the exclusive power to legislate over marriage. The take a casual flick to s109 of the same Act. This gives Federal laws supremacy over State/Territory laws.

The ACT fools have openly stated that their legislation is designed to be treated as if it were speaking for marriages…ergo they have crossed into the Federal field.

If you think I am still wrong, wait the 1 or 2 months it will take for the Feds to strike down the ACT legislation then tell me if I’m still wrong.

If the ACT is so confident of the supremacy of their Act, why the need to rush it through. Lefty grandstanding is all it is. For true reform do it properly and professionally, not like these amateur bum clowns

Yes marriage should be preserved as the respected institution that it is. Britney Spears and those reality television shows like ‘The Bachelor’ have shown us the way.

Much cheaper than advertising the war memorial in the weekend Australian

From what I’ve gathered, the local system does allow interstate couples to get civilly united here (a similar system set up in Tasmania only allows Tasmanians to get civilly united within the state – insert inbreeding joke here).

Sounds like a tourism bonanza to me! If they’re charging a fee for the registeration relationship, it’s a revenue bonanza for the ACT government, too.

vg, your analysis of the situation is lacking. The ACT govt took a look at the body of ACT legislation, and realised that a lot of it refers to marriage. There are two ways that the effects of all of this legislation could be changed to apply to same-sex unions: either allow those unions to be recognised as marriages, or recognise them as non-marriage unions and specify that such unions are to be treated the same as marriages for the purposes of ACT legislation.

The former would require the Federal Government to act (constitutional power over marriages); the latter the ACT government. It was (and is) apparent that the Federal Government was not going to act in this way, so the second alternative was taken.

This is going to all be a complete waste of time, just like Stanhope’s last big anti-Commonwealth dummy spit over the Terrorism legislation.

If a few couples use the laws, there will be a supply of pin-up people to moan about the injustice of it all.

There would also be the complicating factor of this forcing an unseemly rush from the Government to pressure the G-G to act.

I love my boyfriend,
And he loves me,
Now we’ll get hitched, ‘cos
We live in the ACT!

People can get in quick and it will then be invalidated by the Commonwealth legislation overriding it. Nothing but ineffectual petty grandstanding by a government on the brink of collapse.

Lobby the Feds for real reform you morons. All they are doing is marginalising the ACT. The Feds already think we are a joke, this only reinforces it

I thought you had to be a Canberra resident to get a civil union.

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