The Commonwealth has the legal and constitutional power to overturn the ACT’s gay adoption law.
Whether it has power to ban gay marriages and gay adoptions throughout Australia is another matter.
The Constitution gives the Commonwealth power to make laws with respect to the Territories. Indeed, it made such a law granting the ACT self-government. So it can certainly make a law limiting the scope of that self-government. The Commonwealth Parliament could pass a law simply stating that the present gay-adoption law is void and the Legislative Assembly has no power to make laws with respect to gay adoption.
In 1997 when the Commonwealth overturned the Northern Territory’s euthanasia law, it also removed the ACT Legislative Assembly’s power to make laws on euthanasia. The constitutionality of that law was obvious. No-one bothered to challenge it.
The legal position is clear, but it is not good democratic practice to be forever looking over the shoulder of a self-governing territory and approving or disapproving its laws.
Good democratic theory suggests that the ACT Government should be responsible to ACT electors for what is does. ACT voters should kick the Stanhope Government out if it does not like its gay adoption laws.
Obviously, as this is the national capital, the Commonwealth should involve itself in matters that affect the city as a national capital. Traffic lights outside the Australian War Memorial is a good example. Or the quality of the road from the airport to the Parliament.
Perhaps a good test for the Commonwealth Parliament would be to interfere only if it is prepared (and has the power) to take the issue on nationwide, otherwise the ACT and the Northern Territory should work just like the states.
Incidentally, there is perhaps a better case for the Commonwealth to interfere in the Northern Territory than the ACT on these matters because the Northern Territory is maturing to statehood but has not quite made it, so perhaps it needs the Commonwealth as a legislative nursemaid. The ACT, on the other hand, can never be a state because of the Commonwealth’s eternal responsibility over the national-capital elements of the city. On every other score, however, it would be worthy of statehood: its economy is bigger than that of Tasmania and it receives less in federal subsidies than three other states most of the time. It certainly does not get the huge subsidies that the Northern Territory gets.
In any event, the Commonwealth should stick to national objectives. If it thinks that euthanasia, gay marriage or gay adoptions are worthy of the attention of the national parliament, it should legislate in a way that applies to the whole nation to the extent that its constitutional power permits. If it does not have the power to legislate nationwide, it should hold a referendum to increase its powers if it feels that strongly.
It certainly should not point the moral finger down at the ACT and say: we don’t like this piece or that piece of legislation.
Does the Commonwealth have the power to ban gay marriages and gay adoptions nationwide?
The Constitution says the Commonwealth may make laws with respect to “marriage” and “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants”.
The trouble here for the Commonwealth is that it is not for the Commonwealth Parliament to interpret the words of the Constitution. It cannot say what “marriage” is or is not; that is a matter for the High Court. At the time the Constitution was written, “marriage” referred to the union of a man and a woman. But that reference might change over time.
To use another example, say the Commonwealth had power over transport. In 1900 when the Constitution was written that would denote traffic in the land, sea and air and would connote steam ships, horses and buggies and hot-air balloons, but not jet aircraft because they had not been invented at the time. However, as soon as jets were invented they would fit into the meaning of “transport” and fall within Commonwealth power. This is because “transport” denotes any traffic that carries things.
The tricky legal question is over the word “marriage” in the Constitution. Does it denote a relationship between two humans, only one connotation of which is a relationship between a man and a woman. Or does it denote a relationship only between a man and a woman.
If the latter is the case, the Commonwealth probably could not legislate to recognise gay marriages; it would be outside the marriage power. If the former is the case it could probably legislate to recognise or ban gay marriages under the marriage power.
Marriage aside, it is unlikely the Commonwealth could legislate against gay adoption because its power over the custody of children arises only in the case of divorce.
The important political point is that any Commonwealth move to ban gay marriages and adoptions nationwide would result in messy constitutional challenges.
If the Howard Government wanted to make a political point it would have to direct its attention to the territories. It is a prize wedge issue for Howard – demanding that Labor support the ban. People who otherwise would vote Labor might change their vote on the strength of it. In that environment, ACT sensitivities and good democratic theory would have to be scarified for Howard’s re-election program.
Bear in mind, any territorial ban on gay marriages and gay adoption would have to pass the Senate.
That would put Labor in a bind. Labor shot itself in the foot in 1997. It allowed a conscience vote on the Bill to ban euthanasia in the territories. If it had said then that these things were matters for state- and territory-level governments, it would have been in better shape to resist the Howard wedge this time. It could block a ban on the grounds that it was a matter for state and territory governments.
My guess is that the whole thing is so messy and fraught with emotion and legal challenges that the Government will just not get to that item on the Cabinet agenda. So there is unlikely to be legislation, rather just a lot of noise from the Federal Government objecting to what the ACT has done and warning people against coast-to-coast Labor Governments.